SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 12, 1998
EMCOR GROUP, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
0-2315 11-2125338
(Commission File Number) (IRS Employer Identification No.)
101 Merritt Seven
Norwalk, Connecticut 06851
(Address of Principal Executive Offices)
(203) 849-7800
(Registrant's telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events
On March 12, 1998, EMCOR Group, Inc. (the "Company") began an offering,
which was sole managed by Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ"), of $100,000,000 aggregate principal amount of a new series of 5.75%
Convertible Subordinated Notes due 2005 (the "Notes") and 1,100,000 share of the
Company's common stock at a price of $21.875 per share. In addition, the Company
granted to the underwriters separate 30-day options in the offerings to purchase
up to an additional $15,000,000 principal amount of the Notes and up to an
additional 165,000 shares of common stock, in each case to cover
over-allotments. On March 24, 1998, DLJ exercised its over-allotment option only
with respect to the Notes and purchased an additional $15,000,000 aggregate
principal amount of the Notes. Filed herewith are the underwriting agreements
which were executed between the Company and DLJ in conjunction with the
offerings.
Item 7. Exhibits
1. Underwriting Agreement relating to $100,000,000 principal amount
of the Company's 5 3/4% Convertible Subordinated Notes due 2005,
dated as of March 12, 1998, between the Company and Donaldson,
Lufkin & Jenrette Securities Corporation.
2. Underwriting Agreement relating to 1,100,000 shares of the
Company's Common Stock, dated as of March 12, 1998, between the
Company and Donaldson, Lufkin & Jenrette Securities Corporation,
as representative of the several underwriters named in Schedule 1
thereto.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
EMCOR Group, Inc.
By: /s/SHELDON I. CAMMAKER
-------------------------------
Sheldon I. Cammaker
Executive Vice President
Date: May 29, 1998
EXHIBIT INDEX
Exhibit No. Description
1. Underwriting Agreement relating to $100,000,000 principal amount
of the Company's 5 3/4% Convertible Subordinated Notes due 2005,
dated as of March 12, 1998, between the Company and Donaldson,
Lufkin & Jenrette Securities Corporation.
2. Underwriting Agreement relating to 1,100,000 shares of the
Company's Common Stock, dated as of March 12, 1998, between the
Company and Donaldson, Lufkin, & Jenrette Securities Corporation,
as representative of the several underwriters named in Schedule 1
thereto.
Exhibit 1.1
EXECUTION COPY
$100,000,000
EMCOR GROUP, INC.
5 3/4% Convertible Subordinated Notes due 2005
UNDERWRITING AGREEMENT
March 12, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
As representative of the several underwriters named in Schedule I hereto c/o
Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, NY 10172
Dear Sirs:
EMCOR GROUP, INC., a Delaware corporation (the "Company"), proposes to
issue and sell $100,000,000 principal amount of its 5 3/4% Convertible
Subordinated Notes due 2005 (the "Firm Securities") to the several underwriters
named in Schedule I hereto (the "Underwriters"). Donaldson, Lufkin & Jenrette
Securities Corporation shall act as representative (the "Representative") of the
several Underwriters. The Securities are to be issued pursuant to the provisions
of an Indenture to be dated as of March 12, 1998 and a First Supplemental
Indenture to be dated as of March 12, 1998 (collectively, the "Indenture")
between the Company and State Street Bank and Trust Company, as Trustee (the
"Trustee").
The Company also proposes to issue and sell to the several Underwriters
not more than an additional $15,000,000 principal amount of its 5 3/4%
Convertible Subordinated Notes due 2005 (the "Additional Securities"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm
Securities and the Additional Securities are hereinafter collectively referred
to as the "Securities".
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (Registration
No. 333-44369), including a preliminary prospectus, relating to the registration
of the Securities and such other securities which may be offered from time to
time by the Company, in accordance with Rule 415 under the Act. Such
registration statement (as amended) was declared effective by the Commission on
February 6, 1998. Such registration statement (as amended), on the one hand, and
the prospectus constituting a part thereof and the prospectus supplement (which
term may include a preliminary prospectus supplement) relating to the offering
of the Securities provided to the Underwriters by the Company (whether or not
such prospectus supplement is required to be filed with the Commission by the
Company pursuant to the Act) ( the "Prospectus Supplement"), on the other hand,
including all documents incorporated therein by reference pursuant to Item 12 of
Form S-3 under the Act, as from time to time amended or supplemented pursuant to
the Act and to the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (collectively called the "Exchange
Act"), are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Securities to which it relates. Any registration statement and
any copy thereof filed with the Commission via EDGAR (including any amendment or
supplement thereto or information which is deemed part thereof) filed by the
Company under Rule 462(b) of the Act (a "Rule 462(b) Registration Statement")
shall be deemed to be part of the "Registration Statement" as defined herein and
any prospectus or any term sheet as contemplated by Rule 434 of the Act (a "Term
Sheet") (including any amendment or supplement thereto or information which is
deemed a part thereof) and any copy thereof filed with the Commission via EDGAR
included in such registration statement shall be deemed to be part of the
"Prospectus," as defined herein. All references in this agreement (this
"Agreement") to financial statements and schedules and other information which
is "contained," "included," "described" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, even though
not specifically stated, any document filed under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
the principal amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto at 97% of the principal amount thereof (the
"Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Securities and the Underwriters shall have the right to
purchase, severally and not jointly, up to $15,000,000 principal amount of the
Additional Securities from the Company at the Purchase Price. Additional
Securities may be purchased solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Securities. The Underwriters
may exercise their right to purchase Additional Securities in whole or in part
from time to time by giving written notice thereof to the Company within 30 days
after the date of this Agreement. The Representative shall give any such noteice
on behalf of the Underwriters and such notice shall specify the aggregate number
of Additional Securities to be purchased pursuant to such exercise and the date
for payment and delivery thereof, which date shall be a business day (i) no
earlier than three business days after such notice has been given (and, in any
event, no earlier than the Closing Date but may be the Closing Date (as
hereinafter defined)) and (ii) no later than ten business days after such notice
has been given. If any Additional Securities are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of Additional Securities (subject to such adjustments to eliminate
fractions as the Representative may determine) which bears the same proportion
to the total principal amount of Additional Securities to be purchased from the
Company as the principal amount of Firm Securities set forth opposite the name
of such Underwriter in Schedule I bears to the total principal amount of Firm
Securities.
Lock-Up Agreements. The Company hereby agrees not to (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of the
Company's common stock, par value $0.01 per share (the "Common Stock") or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to the Company's
concurrent offering of 1,100,000 shares of its Common Stock (and any additional
shares of Common Stock purchased by the Underwriters pursuant to any related
over-allotment option), or to the holders of Securities upon conversion of such
Securities for a period of 90 days after the date of the Prospectus without the
prior written consent, which shall not be unreasonably withheld, of Donaldson,
Lufkin & Jenrette Securities Corporation. Notwithstanding the foregoing, during
such period (i) the Company may grant stock or stock options pursuant to the
Company's existing employee benefits plans and stock option plans, (ii) the
Company may issue shares of Common Stock upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and (iii)
the Company may issue shares of Common Stock in connection with an acquisition
by the Company. The Company also agrees not to file any registration statement
with respect to any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, other than on Form S-8 pursuant to
its stock or stock option plans, for a period of 90 days after the date of the
Prospectus without the prior written consent, which shall not be unreasonably
withheld, of Donaldson, Lufkin & Jenrette Securities Corporation. The Company
shall, prior to or concurrently with the execution of this Agreement, deliver an
agreement executed by each of the directors and executive officers of the
Company to the effect that such person will not, during the period commencing on
the date such person signs such agreement and ending 90 days after the date of
the Prospectus, without the prior written consent, which shall not be
unreasonably withheld, of Donaldson, Lufkin & Jenrette Corporation, (A) engage
in any of the transactions described in the first sentence of this paragraph or
(B) make any demand for, or exercise any right with respect to, the registration
of any shares of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock.
SECTION 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the execution and delivery of this
Agreement as in your judgment is advisable (and, if necessary, any
post-effective amendment to the Registration Statement), and (ii) initially to
offer the Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities shall be represented
by definitive certificates and shall be issued in such authorized denominations
and registered in such names as Donaldson, Lufkin & Jenrette Securities
Corporation shall request no later than two business days prior to the Closing
Date (as defined below). The Company shall deliver the Securities, with any
transfer taxes thereon duly paid by the Company, to Donaldson, Lufkin & Jenrette
Securities Corporation through the facilities of The Depository Trust Company
("DTC"), for the respective accounts of the several Underwriters, against
payment to the Company of the Purchase Price therefore by wire transfer of
Federal or other funds immediately available in New York City. The certificates
representing the Securities shall be made available for inspection not later
than 9:30 A.M., New York City time, on the business day prior to the Closing
Date (as defined below), at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of delivery and payment for the
Securities shall be 9:00 A.M., New York City time, on March 18, 1998 or such
other time on the same or such other date as Donaldson, Lufkin & Jenrette
Securities Corporation and the Company shall agree in writing. The time and date
of such delivery and payment are hereinafter referred to as the "Closing Date".
The time and date of delivery and payment for any Additional Securities to be
purchased by the Underwriters shall be 9:00 A.M., New York City time, on the
date specified in the applicable exercise notice given by you pursuant to
Section 2 or such other time on the same or such other date as Donaldson, Lufkin
& Jenrette Securities Corporation and the Company shall agree in writing. The
time and date of delivery of the Additional Securities are hereinafter referred
to as an "Additional Securities Closing Date".
The documents to be delivered on the Closing Date or any Additional
Securities Closing Date on behalf of the parties hereto pursuant to Section 8 of
this Agreement shall be delivered at the offices of Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York, and the Securities shall be delivered
at the Designated Office, all on the Closing Date or Additional Securities
Closing Date, as the case may be.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) In respect of the offering of Securities, to (i) prepare a
prospectus supplement setting forth the number of Securities covered thereby and
their terms not otherwise specified in the Prospectus pursuant to which the
Securities are being issued, the names of the Underwriters participating in the
offering and the number of Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers, if any, in
connection with the offering, the price at which the Securities are to be
purchased by the Underwriters from the Company, the public offering price, the
selling concession and reallowance if any, and such other information as the
Underwriters and the Company deem appropriate in connection with the offering of
the Securities and (ii) file the Prospectus in a form approved by you pursuant
to Rule 424 under the Act no later than the Commission's close of business on
the second business day following the date of determination of the offering
price of the Securities.
(b) At any time when the Prospectus is required to be delivered under
the Act in connection with sales of Securities, to advise you promptly and, if
requested by you, to confirm such advice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus or other supplement or amendment to the
Prospectus to be filed pursuant to the Act, (iii) the receipt of any comments
from the Commission relating to the Registration Statement, any preliminary
prospectus relating to the Securities, the Prospectus or any of the transactions
contemplated by this Agreement, (iv) any request by the Commission for
post-effective amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (v) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Securities
for offering or sale in any jurisdiction, or the initiation of any proceeding
for such purposes, and (vi) the happening of any event which makes any statement
of a material fact made in the Registration Statement or the Prospectus untrue
or which requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading. The Company will make every reasonable effort to prevent the
issuance of any stop order and if at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, the
Company will use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish to you one signed copy, without charge, of the
Registration Statement as first filed with the Commission and of each amendment
thereto, including all exhibits and documents incorporated therein by reference,
and to furnish to you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each amendment
to it, without exhibits and without documents incorporated therein by reference,
as you may reasonably request. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) At any time when the Prospectus is required to be delivered under
the Act in connection with sales of Securities, not to file any amendment to the
Registration Statement or any Rule 462(b) Registration Statement or to make any
amendment or supplement to the Prospectus or any Term Sheet, if applicable, of
which you shall not previously have been advised or to which you or counsel for
the Underwriters shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or
amendment or supplement to the Prospectus which, in the opinion of counsel for
the Underwriters, may be necessary in connection with the distribution of the
Securities by you, and to use its best efforts to cause the same to become
promptly effective. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(f) If during the period specified in Section 5(e), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading, or if,
in the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare
and file with the Commission an appropriate amendment or supplement to the
Prospectus (in form and substance reasonably satisfactory to counsel for the
Underwriters) so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and to furnish to each Underwriter and to any dealer as many copies thereof
as such Underwriter or dealer may reasonably request.
(g) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request, to continue such registration or qualification in effect so
long as required for distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Securities,
in any jurisdiction in which it is not now so subject.
(h) To make generally available to its security holders pursuant to
Rule 158 of the Act as soon as practicable an earnings statement covering the
twelve-month period ending March 31, 1999, and to advise you in writing, if
requested by you, when such statement has been so made available.
(i) During the period when the Prospectus is required to be delivered
under the Act in connection with sales of the Securities, to file all documents
required to be filed by it with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act within the time periods required by the Exchange Act.
(j) So long as the Securities are outstanding, to mail and make
generally available to all holders of the Securities any reports, financial
statements or other communications furnished to the holders of its Common Stock
at the same time such materials are distributed to holders of the Common Stock.
(k) So long as the Securities are outstanding, to furnish to you as
soon as available copies of all reports or other communications furnished to its
security holders or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed
and such other publicly available information concerning the Company and its
subsidiaries as you may reasonably request.
(l) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Securities under the Act and all other fees and expenses in connection with
the preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs, if any, of printing,
producing or delivering this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Securities, (iv)
all expenses in connection with the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any Preliminary and
Supplemental Blue Sky Memoranda in connection therewith (including the filing
fees and fees and disbursements of counsel for the Underwriters in connection
with such registration or qualification and memoranda relating thereto), (v) the
filing fees and disbursements of counsel for the Underwriters in connection with
the review and clearance of the offering of the Securities by the National
Association of Securities Dealers, Inc., if applicable, (vi) all fees and
expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Securities and all costs and expenses
incident to the listing of the Securities on the Nasdaq SmallCap Market, (vii)
the cost of the preparation, issuance and delivery of certificates representing
the Securities, (viii) the costs and charges of any transfer agent, registrar
and/or depositary (including the Depository Trust Company), (ix) any fees
charged by rating agencies for the rating of the Securities, (x) the fees and
expenses of the Trustee and the Trustee's counsel in connection with the
Indenture and the Securities, (xi) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section, and (xii) any travel expenses incurred by
the Company in connection with a "road show" presentation to potential
investors.
(m) To use its best efforts to list for quotation the Securities on the
Nasdaq SmallCap Market and to maintain the listing of the Securities on the
Nasdaq SmallCap Market or any other national securities exchange for so long as
the Securities are outstanding.
(n) To use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus Supplement under "Use of
Proceeds".
(o) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise transfer or dispose of any debt securities of the Company or any
warrants, rights or options to purchase or otherwise acquire debt securities of
the Company substantially similar to the Securities (other than (i) the
Securities and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of Donaldson, Lufkin & Jenrette Securities
Corporation.
(p) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities.
(q) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date and to satisfy all conditions precedent to the delivery of the
Securities.
(r) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Securities, to file a Rule 462(b)
Registration Statement with the Commission registering the Securities not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the
date of this Agreement and to pay to the Commission the filing fee for such Rule
462(b) Registration Statement at the time of the filing thereof or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3, and the
Registration Statement on Form S-3 relating to the Securities has been prepared
by the Company under the provisions of the Act and has been filed with and
declared effective by the Commission.
(b) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will become effective no later than
10:00 P.M., New York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(c) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement)
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments thereto,
when they become effective (A) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) will comply in
all material respects with the Act and (v) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Underwriter
furnished to the Company by such Underwriter through you expressly for use
therein. For all purposes of this Agreement, the amounts of selling concession
and reallowance set forth in the Prospectus and the portions of the
"Underwriting" section set forth in the letter of the Underwriters to the
Company constitute the only information relating to any Underwriter furnished to
the Company by the Underwriters specifically for inclusion in the Prospectus or
the Registration Statement. The Company has not distributed any offering
material in connection with the offering or sale of the Securities other than
the Registration Statement, the preliminary prospectus, the Prospectus or any
other materials, if any, permitted by the Act.
(d) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company by such Underwriter through you expressly for use
therein.
(e) Each of the Company and its Significant Subsidiaries set forth on
the attached Schedule II (the "Significant Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole.
(f) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities (other than the Securities), commitments of sale
or liens (other than those granted pursuant to the credit agreement between the
Company and Harris Trust and Savings Bank dated June 19, 1996) granted or issued
by the Company or any of its Significant Subsidiaries relating to or entitling
any person to purchase or otherwise to acquire any shares of the capital stock
of the Company or any of its Significant Subsidiaries, except as otherwise
disclosed in the Registration Statement.
(g) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights.
(h) All of the outstanding shares of capital stock of each of the
Company's Significant Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more Significant Subsidiaries, free and clear of any
security interest, claim, lien (other than those granted pursuant to the credit
agreement between the Company and Harris Trust and Savings Bank dated June 19,
1996), encumbrance or adverse interest of any nature (each, a "Lien").
(i) The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and has been duly authorized,
executed and delivered by the Company and, assuming due authorization, execution
and delivery thereof by the Trustee, is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing and (B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(j) The Securities have been duly authorized and, on the Closing Date,
will have been validly executed and delivered by the Company. When the
Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, the Securities will be entitled to
the benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing and (B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(k) The Securities conform in all material respects to the description
thereof contained in the Prospectus.
(l) Neither the Company nor any of its Significant Subsidiaries is in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument which violation
or default would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries or their respective property is bound.
(m) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company, the compliance by the Company with
all the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required and shall be
obtained as provided by this Agreement under the securities or Blue Sky laws of
the various states), (ii) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of the
Company or any of its Significant Subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument the breach of or default under
which would have a material adverse effect on the Company and its subsidiaries,
taken as a whole, to which the Company or any of its Significant Subsidiaries is
a party or by which the Company or any of its Significant Subsidiaries or their
respective property is bound, (iii) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of its
Significant Subsidiaries or their respective property, (iv) result in the
imposition or creation of (or the obligation to create or impose) a Lien under
any agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries or their respective property is bound or (v) result in the
suspension, termination or revocation of any Authorization (as defined in
subparagraph (o) below) of the Company or any of its Significant Subsidiaries or
any other impairment of the rights of the holder of any such Authorization.
(n) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of its
Significant Subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be described in
the Registration Statement or the Prospectus and are not so described and, to
the best of the Company's knowledge, no such proceedings which may be material
with respect to the Company and its subsidiaries taken as a whole have been
threatened against the Company or any of its Significant Subsidiaries; nor are
there any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so described or filed as
required.
(o) Neither the Company nor any of its Significant Subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a material adverse effect on the business,
prospects, financial condition or results of operation of the Company and its
subsidiaries, taken as a whole.
(p) Each of the Company and its Significant Subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where
the failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole. Each such Authorization is valid and in
full force and effect and each of the Company and its Significant Subsidiaries
is in compliance in all material respects with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; except where
such failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction would
not, singly or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(q) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole.
(r) This Agreement has been duly authorized, executed and delivered by
the Company.
(s) Arthur Andersen LLP are independent public accountants with respect
to the Company and its subsidiaries as required by the Act.
(t) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company.
(u) The Company and each of its Significant Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(v) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended, or a "holding company" as
such term is defined in the Public Utility Holding Company Act of 1935, as
amended.
(w) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the
Securities registered pursuant to the Registration Statement.
(x) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any securities of
the Company or (ii) any change in the outlook for any rating of the Company or
any securities of the Company.
(y) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its Significant
Subsidiaries and (iii) neither the Company nor any of its Significant
Subsidiaries has incurred any material liability or obligation, direct or
contingent that is likely to have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(z) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
SECTION 7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter, its directors, its officers and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, to reimburse
any legal or other expenses reasonably incurred in connection with investigating
or defending any matter, including any action, that could give rise to any such
losses, claims, damages, liabilities or judgments as such expenses are incurred)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company by such Underwriter through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter who failed to deliver a Prospectus (as then amended or supplemented,
provided by the Company to the several Underwriters in the requisite quantity
and on a timely basis to permit proper delivery on or prior to the Closing Date)
to the person asserting any losses, claims, damages and liabilities and
judgements caused by any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or omission
was cured in such Prospectus and such Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to such Underwriter, and
to reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any loss, claim, damage, liability or
action as such expenses are incurred, but only with reference to information
relating to such Underwriter furnished in writing to the Company by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Donaldson, Lufkin & Jenrette Securities Corporation, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than thirty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) 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 hand from the offering
of the Securities or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, 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 hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Securities, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters 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 Section 7(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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action, that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 7, 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 to contribute
pursuant to this Section 7(d) are several in proportion to the respective
principal amount of Securities purchased by each of the Underwriters hereunder
and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) At the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission.
(c) The Prospectus and any amendment or supplement thereto shall have
been filed with the Commission in the manner and within the time period required
by Rules 434 and 424(b) under the Act.
(d) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change,
nor shall any notice have been given of any potential or intended change, in the
outlook for any rating of the Company or any securities of the Company by any
such rating organization and (iii) no such rating organization shall have given
notice that it has assigned (or is considering assigning) a lower rating to the
Securities than that on which the Securities were marketed.
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any adverse change or any development involving a
prospective adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any adverse
change or any development involving a prospective adverse change in the capital
stock or in the long-term debt of the Company or any of its Significant
Subsidiaries and (iii) neither the Company nor any of its Significant
Subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(e)(i),
8(e)(ii) or 8(e)(iii), in your judgment, is material and adverse to the Company
and its subsidiaries taken as a whole and, in your judgment, makes it
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
(f) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by the Chairman of the Board, the President or one of the
Executive Vice Presidents and the Chief Financial Officer or the Vice President
and Controller of the Company, confirming the matters set forth in Sections
6(y), 8(a), 8(b), 8(c), 8(d) and 8(e) and that the Company has complied with all
of the agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by the Company on or prior to the
Closing Date.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Simpson Thacher & Bartlett, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority
to carry on its business as described in the Prospectus;
(ii) the Securities have been duly authorized and, when
executed by the Company in accordance with the provisions of the
Indenture, assuming due authentication, execution and delivery thereof
by the Trustee, and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms except as (A)
the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing and (B) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and, assuming due authorization, execution and delivery
thereof by the Trustee, is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and
an implied covenant of good faith and fair dealing and (B) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Registration Statement has become effective under the
Act and the Prospectus was filed with the Commission pursuant to Rule
424 within the applicable time period prescribed by Rule 424;
(vi) the statements under the captions "Description of Debt
Securities", "Description of Capital Stock" and "Description of Notes"
in the Prospectus and Item 15 of Part II of the Registration Statement,
insofar as such statements constitute a summary of (i) the terms of the
Company's capital stock, constitute accurate summaries of the terms of
such capital stock in all material respects, (ii) the terms of the
Company's debt securities, including the Securities, constitute
accurate summaries of the terms of such debt securities in all material
respects and (iii) the legal matters, documents or proceedings referred
to therein, are accurate in all material respects;
(vii) the statements under the caption "Certain United States
Federal Income Tax Consequences" in the Prospectus, insofar as such
statements purport to constitute a summary of matters of United States
federal tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters described therein
in all material respects;
(viii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended; and
(ix) (A) each document, if any, filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus (except for
financial statements and other financial data included therein as to
which no opinion need be expressed) complied when so filed as to form
in all material respects with the Exchange Act, (B) the Registration
Statement and the Prospectus and any supplement or amendment thereto
(except for the financial statements and other financial data included
therein as to which no opinion need be expressed) complied when so
filed as to form in all material respects with the Act, (C) such
counsel has no reason to believe that at the time the Registration
Statement, or any further amendment thereto made by the Company prior
to the Closing Date, became effective, the Registration Statement
(except for the financial statements and other financial data included
therein as to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act)
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (D) such counsel has no reason to
believe that the Prospectus, as amended or supplemented, if applicable
(except for the financial statements and other financial data, as to
which such counsel need not express any belief) contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (E) to
such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto and
no order directed at any document incorporated by reference in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto has been issued, and to such counsel's knowledge, no
proceedings for that purpose have been instituted or threatened by the
Commission.
The opinion of Simpson Thacher & Bartlett described in Section 8(g)
above shall be rendered to you at the request of the Company and shall so state
therein. In giving such opinion, Simpson Thacher & Bartlett may state that (1)
their opinion is limited to matters governed by the federal laws of the United
States of America, the laws of the State of New York and the General Corporation
Law of the State of Delaware, and that such counsel is not admitted in the State
of Delaware and (2) as to matters of fact, they rely to the extent they deem
proper on certificates of responsible officers of the Company and certificates
or other written statements of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company and its subsidiaries.
In giving such opinions with respect to the matters covered by Section
8(g)(ix) above, Simpson Thacher & Bartlett may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but is without independent check or verification except as specified.
(h) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of the General Counsel to the Company to the effect that:
(i) all the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
(ii) each of the Company's Significant Subsidiaries
incorporated in the United States is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority to carry on its business as
described in the Prospectus; and with respect to each of the Company's
Significant Subsidiaries incorporated in a jurisdiction outside the
United States, such counsel will make equivalent representations in
accordance with the laws of the jurisdiction of each such non-United
States Significant Subsidiary;
(iii) each of the Company and its Significant Subsidiaries
incorporated in the United States is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole; and with respect
to each of the Company's Significant Subsidiaries incorporated in a
jurisdiction outside the United States, such counsel will make
equivalent representations in accordance with the laws of the
jurisdiction of each such non-United States Significant Subsidiary;
(iv) all of the outstanding shares of capital stock of each of
the Company's Significant Subsidiaries incorporated in the United
States have been duly authorized and validly issued and are fully paid
and non-assessable, and are owned by the Company, directly or
indirectly, through one or more subsidiaries, free and clear of any
Lien; and with respect to each of the Company's Significant
Subsidiaries incorporated in a jurisdiction outside the United States,
such counsel will make equivalent representations in accordance with
the laws of the jurisdiction of each such non-United States Significant
Subsidiary;
(v) neither the Company nor, to the best of such counsel's
knowledge, any of its Significant Subsidiaries is in violation of its
respective charter or by-laws and, to the best of such counsel's
knowledge, neither the Company nor any of its Significant Subsidiaries
is in default in the performance of any obligation, agreement, covenant
or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries or their respective property is bound
the violation or default of which would have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(vi) the execution, delivery and performance of this
Agreement, the Indenture and the Securities by the Company, the
compliance by the Company with all the provisions hereof and thereof
and the consummation of the transactions contemplated hereby and
thereby will not (A) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body
or agency (except such as may be required under the securities or Blue
Sky laws of the various states), (B) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or, to the best of such counsel's
knowledge, any of its Significant Subsidiaries or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to
which the Company or any of its Significant Subsidiaries is a party or
by which the Company or any of its Significant Subsidiaries or their
respective property is bound, (C) to the best of such counsel's
knowledge, violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any of its
Significant Subsidiaries or their respective property, (D) to the best
of such counsel's knowledge, result in the imposition or creation of
(or the obligation to create or impose) a Lien under any agreement or
instrument to which the Company or any of its Significant Subsidiaries
is a party or by which the Company or any of its Significant
Subsidiaries or their respective property is bound or (E) to the best
of such counsel's knowledge, result in the suspension, termination or
revocation of any Authorization of the Company or any of its
Significant Subsidiaries or any other impairment of the rights of the
holder of any such Authorization;
(vii) (A) there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge, threatened to
which the Company is or could be a party or to which any of its
property is or could be subject that are required to be described in
the Registration Statement or the Prospectus and are not so described,
or of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed as required and (B) to the best of
such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened to which any of the Company's
Significant Subsidiaries is or could be a party or to which any of
their respective property is or could be subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described, or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(viii) to the best of such counsel's knowledge, neither the
Company nor any of its Significant Subsidiaries has violated any
provisions of the Foreign Corrupt Practices Act or the rules and
regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a material adverse effect on
the business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole;
(ix) (A) the Company has such Authorizations of, and has made
all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or
notice would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; each
such Authorization is valid and in full force and effect and the
Company is in compliance in all material respects with all the terms
and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which
allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any
other impairment of the rights of the holder of any such Authorization;
except where such failure to be valid and in full force and effect or
to be in compliance, the occurrence of any such event or the presence
of any such restriction would not, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as
a whole; and (B) to the best of such counsel's knowledge, each of the
Company's Significant Subsidiaries has such Authorizations of, and has
made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or
notice would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; to
the best of such counsel's knowledge, each such Authorization is valid
and in full force and effect and each of the Company's Significant
Subsidiaries is in compliance in all material respects with all the
terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto; and, to the best of such counsel's knowledge, no event has
occurred (including, without limitation, the receipt of any notice from
any authority or governing body) which allows or, after notice or lapse
of time or both, would allow, revocation, suspension or termination of
any such Authorization or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of the holder
of any such Authorization; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any
such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole;
(x) there are no contracts, agreements or, to the best of such
counsel's knowledge, understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with
the Securities registered pursuant to the Registration Statement; and
(xi) (A) such counsel has no reason to believe that at the
time the Registration Statement, or any further amendment thereto made
by the Company prior to the Closing Date, became effective, the
Registration Statement (except for the financial statements and other
financial data included therein as to which such counsel need not
express any belief and except for the part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(B) such counsel has no reason to believe that the Prospectus, as
amended or supplemented, if applicable (except for the financial
statements and other financial data, as to which such counsel need not
express any belief) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In giving such opinions as described in Section 8(h) above, the General
Counsel may state that such counsel relies to the extent he deems proper upon
counsel located in jurisdictions in which such counsel is not admitted to
practice.
(i) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters,
with respect to the Prospectus and such other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(j) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Arthur Andersen, LLP independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
(k) The Securities shall have been duly listed for quotation on the
Nasdaq SmallCap Market.
(l) The Securities shall have been rated "B" by Standard & Poor's
Corporation and "B3" by Moody's Investors Service, Inc.
(m) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company and
the Trustee.
(n) The Company shall not have failed on or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company on or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Securities hereunder are subject to the delivery to the Representative on the
applicable Additional Securities Closing Date of such documents as it may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of such Additional Securities and other matters
related to the issuance of such Additional Securities.
Section 9. Effectiveness of Agreement and Termination. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been any adverse effect or
development involving a prospective material adverse effect in the condition,
financial or otherwise, of the Company or any of its Significant Subsidiaries or
the earnings, affairs, or business prospects of the Company or any of its
Significant Subsidiaries, whether or not arising in the ordinary course of
business, which would, in your judgment, make it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus, (ii)
any outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and, in your judgment, makes it impracticable to market the Securities
on the terms and in the manner contemplated in the Prospectus, (iii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iv) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (v) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its Significant Subsidiaries, taken as a whole, (vi) the declaration of a
banking moratorium by either federal or New York State authorities or (vii) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
If on the Closing Date or an Additional Securities Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Securities or Additional Securities, as the case may be, which
it or they have agreed to purchase hereunder on such date and the aggregate
principal amount of Firm Securities or Additional Securities, as the case may
be, which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate principal amount
of Firm Securities or Additional Securities, as the case may be, to be purchased
on such date by all Underwriters, each non-defaulting Underwriter shall be
obligated severally, in the proportion which the principal amount of Firm
Securities set forth opposite its name in Schedule I bears to the aggregate
principal amount of Firm Securities which all the non-defaulting Underwriters
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Securities or Additional Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the aggregate principal amount of
Securities which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Underwriter. If on the Closing Date any Underwriter or Underwriters shall
fail or refuse to purchase Firm Securities and the aggregate principal amount of
Firm Securities with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of Firm Securities to be purchased by all
Underwriters and arrangements satisfactory to you and the Company for purchase
of such Securities are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter and the Company. In any such case which does not result in
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven business days,
in order that the required changes, if any, in the Registration Statement and
the Prospectus or any other documents or arrangements may be effected. If, on an
Additional Securities Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Additional Securities and the aggregate principal amount
of Additional Securities with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Additional Securities to be
purchased on such date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase such Additional Securities
or (ii) purchase not less than the number of Additional Securities that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from any liability it may have to the Company
and the other Underwriters for damages caused by its default.
Section 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to EMCOR
Group, Inc., 101 Merritt Seven Corporate Park, Norwalk, Connecticut, 06851, and
(ii) if to any Underwriter or to you, to you c/o Donaldson, Lufkin & Jenrette
Securities Corporation, 277 Park Avenue, New York, New York, 10172, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing. The Company shall be entitled to rely
upon any request, consent, notice or agreement given or made on behalf of the
Underwriters by Donaldson, Lufkin & Jenrette Securities Corporation.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the reasonable
fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(l) hereof. However, if this
Agreement is terminated pursuant to Section 9 by reason of the default of one or
more Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses. The Company also agrees to
reimburse the several Underwriters, their directors and officers and any persons
controlling any of the Underwriters for reasonable fees and expenses (including
the fees and disbursements of counsel) incurred by them in connection with
enforcing their rights hereunder (including, without limitation, pursuant to
Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
internal laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
EMCOR GROUP, INC.
By: ___________________________
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
Acting severally on behalf of
itself and the several
Underwriters named in
Schedule I hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: _______________________________
<PAGE>
SCHEDULE I
Principal Amount of
Underwriters Securities to be Purchased
Donaldson, Lufkin & Jenrette Securities Corporation $100,000,000
--------------
Total: $100,000,000
SCHEDULE II
Significant Subsidiaries
Comstock Canada
Drake & Scull Engineering
Dynalectric Company
Forest Electric
Gibson Electric
Hansen Mechanical
Hyre Electric
J.C. Higgins
Penguin Air Conditioning
Trautman & Shreve
University Mechanical
Exhibit 2
EXECUTION COPY
1,100,000 Shares
EMCOR GROUP, INC.
Common Stock
UNDERWRITING AGREEMENT
March 12, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
As representative of the several underwriters
named in Schedule I hereto
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
EMCOR GROUP, INC., a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters (as defined below) 1,100,000 shares
of its Common Stock, par value $0.01 per share (the "Firm Shares"). It is
understood that, subject to the conditions hereinafter stated, 1,100,000 Firm
Shares (the "Firm Shares") will be sold to the several Underwriters named in
Schedule I hereto (the "Underwriters") in connection with the offering and sale
of such Firm Shares. Donaldson, Lufkin & Jenrette Securities Corporation shall
act as representative (the "Representative") of the several Underwriters.
The Company also proposes to issue and sell to the several Underwriters
not more than an additional 165,000 shares of its Common Stock, par value $0.01
per share (the "Additional Shares"), if requested by the Underwriters as
provided in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares". The shares of common stock
of the Company to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the "Common Stock".
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 Registration No.
333-44369), including a preliminary prospectus, relating to the registration of
the Shares and such other securities which may be offered from time to time by
the Company, in accordance with Rule 415 under the Act. Such registration
statement (as amended) was declared effective by the Commission on February 6,
1998. The registration statement (as amended), on the one hand, and the
prospectus constituting a part thereof and the prospectus supplement (which term
may include a preliminary prospectus supplement) relating to the offering of the
Shares provided to the Underwriters by the Company (whether or not such
prospectus supplement is required to be filed with the Commission by the Company
pursuant to the Act) (the "Prospectus Supplement"), on the other hand, including
all documents incorporated therein by reference pursuant to Item 12 of Form S-3
under the Act, as from time to time amended or supplemented pursuant to the Act
and to the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively called the "Exchange
Act"), are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of the Shares to which it relates. Any registration statement, and any
copy thereof filed with the Commission via EDGAR, (including any amendment or
supplement thereto or information which is deemed part thereof) filed by the
Company under Rule 462(b) of the Act (a "Rule 462(b) Registration Statement")
shall be deemed to be part of the "Registration Statement" as defined herein and
any prospectus or any term sheet as contemplated by Rule 434 of the Act (a "Term
Sheet") (including any amendment or supplement thereto or information which is
deemed a part thereof), and any copy thereof filed with the Commission via
EDGAR, included in such registration statement shall be deemed to be part of the
"Prospectus," as defined herein. All references in this agreement (this
"Agreement") to financial statements and schedules and other information which
is "contained," "included," "described" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include, without limitation, even though
not specifically stated, any document filed under the Exchange Act which is or
is deemed to be incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On
the basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
at a price per Share of $20.555 (the "Purchase Price") the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to 165,000 Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. The Representative
shall give any such notice on behalf of the Underwriters and such notice shall
specify the aggregate number of Additional Shares to be purchased pursuant to
such exercise and the date for payment and delivery thereof, which date shall be
a business day (i) no earlier than three business days after such notice has
been given (and, in any event, no earlier than the Closing Date, but may be the
Closing Date (as hereinafter defined)) and (ii) no later than ten business days
after such notice has been given. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Company
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the Representative may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
Lock-Up Agreements. The Company hereby agrees not to (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the ownership of any
Common Stock (regardless of whether any of the transactions described in clause
(i) or (ii) is to be settled by the delivery of Common Stock, or such other
securities, in cash or otherwise), except to the Underwriters pursuant to this
Agreement or to the holders of the Company's 5.75% Convertible Subordinated
Notes due 2005 (the "Notes") offered pursuant to the concurrent Notes offering,
upon the conversion of such Notes, for a period of 90 days after the date of the
Prospectus without the prior written consent which shall not be unreasonably
withheld of Donaldson, Lufkin & Jenrette Securities Corporation. Notwithstanding
the foregoing, during such period (i) the Company may grant stock or stock
options pursuant to the Company's existing employee benefits plans and stock
option plans, (ii) the Company may issue shares of Common Stock upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and (iii) the Company may issue shares of Common Stock in
connection with an acquisition by the Company. The Company also agrees not to
file any registration statement with respect to any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock,
other than on Form S-8 pursuant to its stock or stock option plans, for a period
of 90 days after the date of the Prospectus without the prior written consent
which shall not be unreasonably withheld of Donaldson, Lufkin & Jenrette
Securities Corporation. The Company shall, prior to or concurrently with the
execution of this Agreement, deliver an agreement executed by each of the
directors and executive officers of the Company to the effect that such person
will not, during the period commencing on the date such person signs such
agreement and ending 90 days after the date of the Prospectus, without the prior
written consent which shall not be unreasonably withheld of Donaldson, Lufkin &
Jenrette Corporation, (A) engage in any of the transactions described in the
first sentence of this paragraph or (B) make any demand for, or exercise any
right with respect to, the registration of any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock.
SECTION 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable (and, if necessary, any
post-effective amendment to the Registration Statement), and (ii) initially to
offer the Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations and
registered in such names as Donaldson, Lufkin & Jenrette Securities Corporation
shall request no later than two business days prior to the Closing Date or the
applicable Option Closing Date (as defined below), as the case may be. The
Shares shall be delivered by or on behalf of the Company, with any transfer
taxes thereon duly paid by the Company, to Donaldson, Lufkin & Jenrette
Securities Corporation through the facilities of The Depository Trust Company
("DTC"), for the respective accounts of the several Underwriters, against
payment to the Company of the Purchase Price therefore by wire transfer of
Federal or other funds immediately available in New York City. The certificates
representing the Shares shall be made available for inspection not later than
9:30 A.M., New York City time, on the business day prior to the Closing Date or
the applicable Option Closing Date (as defined below), as the case may be, at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of delivery and payment for the Firm Shares shall be 9:00 A.M.,
New York City time, on March 18, 1998 or such other time on the same or such
other date as Donaldson, Lufkin & Jenrette Securities Corporation and the
Company shall agree in writing. The time and date of delivery of the Firm Shares
are hereinafter referred to as the "Closing Date". The time and date of delivery
and payment for any Additional Shares to be purchased by the Underwriters shall
be 9:00 A.M., New York City time, on the date specified in the applicable
exercise notice given by you pursuant to Section 2 or such other time on the
same or such other date as Donaldson, Lufkin & Jenrette Securities Corporation
and the Company shall agree in writing. The time and date of delivery of the
Additional Shares are hereinafter referred to as an "Additional Shares Closing
Date".
The documents to be delivered on the Closing Date or any Additional
Shares Closing Date on behalf of the parties hereto pursuant to Section 8 of
this Agreement shall be delivered at the offices of Simpson Thacher & Bartlett,
425 Lexington Avenue, New York, New York, and the Shares shall be delivered at
the Designated Office, all on the Closing Date or such Additional Shares Closing
Date, as the case may be.
SECTION 5. Agreements of the Company. The Company agrees with you:
(a) In respect of the offering of Shares, to (i) prepare a prospectus
supplement setting forth the number of Shares covered thereby and their terms
not otherwise specified in the Prospectus pursuant to which the Shares are being
issued, the names of the Underwriters participating in the offering and the
number of Shares which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers, if any, in connection with the offering, the
price at which the Shares are to be purchased by the Underwriters from the
Company, the public offering price, the selling concession and reallowance if
any, and such other information as the Underwriters and the Company deem
appropriate in connection with the offering of the Shares and (ii) file the
Prospectus in a form approved by you pursuant to Rule 424 under the Act no later
than the Commission's close of business on the second business day following the
date of determination of the offering price of the Shares.
(b) At any time when the Prospectus is required to be delivered under
the Act in connection with sales of Shares, to advise you promptly and, if
requested by you, to confirm such advice in writing, of (i) the effectiveness of
any amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus or other supplement or amendment to the
Prospectus to be filed pursuant to the Act, (iii) the receipt of any comments
from the Commission relating to the Registration Statement, any preliminary
prospectus relating to the Shares, the Prospectus or any of the transactions
contemplated by this Agreement, (iv) any request by the Commission for
post-effective amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information, (v) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purposes, and (vi) the happening of any event which makes any statement of
a material fact made in the Registration Statement or the Prospectus untrue or
which requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading. The Company will make every reasonable effort to prevent the
issuance of any stop order and if at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, the
Company will use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
(c) To furnish to you one signed copy, without charge, of the
Registration Statement as first filed with the Commission and of each amendment
thereto, including all exhibits and documents incorporated therein by reference,
and to furnish to you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each amendment
to it, without exhibits and without documents incorporated therein by reference,
as you may reasonably request. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) At any time when the Prospectus is required to be delivered under
the Act in connection with sales of Shares, not to file any amendment to the
Registration Statement or any Rule 462(b) Registration Statement or to make any
amendment or supplement to the Prospectus or any Term Sheet, if applicable, of
which you shall not previously have been advised or to which you or counsel for
the Underwriters shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement, Rule 462(b) Registration Statement, Term Sheet, or
amendment or supplement to the Prospectus which, in the opinion of counsel for
the Underwriters, may be necessary in connection with the distribution of the
Shares by you, and to use its best efforts to cause the same to become promptly
effective. If applicable, the Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(e) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
as such Underwriter or dealer may reasonably request.
(f) If during the period specified in Section 5(e), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
existing when the Prospectus is delivered to a purchaser, not misleading, or if,
in the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare
and file with the Commission an appropriate amendment or supplement to the
Prospectus (in form and substance reasonably satisfactory to counsel for the
Underwriters) so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and to furnish to each Underwriter and to any dealer as many copies thereof
as such Underwriter or dealer may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Shares, in
any jurisdiction in which it is not now so subject.
(h) To make generally available to its stockholders pursuant to Rule
158 of the Act as soon as practicable an earnings statement which need not be
audited covering the twelve-month period ending March 31, 1999, and to advise
you in writing, if requested by you, when such statement has been so made
available.
(i) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(j) During the period when the Prospectus is required to be delivered
under the Act in connection with sales of the Shares, to file all documents
required to be filed by it with the Commission pursuant to Section 13, 14 or 15
of the Exchange Act within the time periods required by the Exchange Act.
(k) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) all costs, if any, of printing, producing
or delivering this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Shares, (iv) all expenses
in connection with the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states and all costs
of printing or producing any Preliminary and Supplemental Blue Sky Memoranda in
connection therewith (including the filing fees and fees and disbursements of
counsel for the Underwriters in connection with such registration or
qualification and memoranda relating thereto), (v) the filing fees and
disbursements of counsel for the Underwriters in connection with the review and
clearance of the offering of the Shares by the National Association of
Securities Dealers, Inc., if applicable, (vi) all fees and expenses in
connection with the preparation and filing of the registration statement on Form
8-A relating to the Common Stock and all costs and expenses incident to the
listing of the Shares on the Nasdaq National Market, (vii) the cost of the
preparation, issuance and delivery of certificates representing the Shares,
(viii) the costs and charges of any transfer agent, registrar and/or depositary,
(ix) all other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in this
Section, and (x) any travel expenses incurred by the Company in connection with
a "road show" presentation to potential investors.
(l) To use its best efforts to list for quotation the Shares on the
Nasdaq National Market and to maintain the listing of the Shares on the Nasdaq
National Market or any other national securities exchange for a period of three
years after the date of this Agreement.
(m) To use the net proceeds received by it from the sale of the Shares
in the manner specified in the Prospectus Supplement under "Use of Proceeds".
(n) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date or any Additional Shares Closing Date, as the case may be, and
to satisfy all conditions precedent to the delivery of the Shares.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3, and the
Registration Statement on Form S-3 relating to the Shares has been prepared by
the Company under the provisions of the Act and has been filed with and declared
effective by the Commission.
(b) The Registration Statement has become effective (other than any
Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement); any Rule 462(b) Registration Statement filed
after the effectiveness of this Agreement will become effective no later than
10:00 P.M., New York City time, on the date of this Agreement; and no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(c) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement)
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, such Rule 462(b) Registration Statement and any amendments thereto,
when they become effective (A) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (B) will comply in
all material respects with the Act and (v) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any Underwriter
furnished to the Company by such Underwriter through you expressly for use
therein. For all purposes of this Agreement, the amounts of selling concession
and reallowance set forth in the Prospectus and the portions of the
"Underwriting" section set forth in the letter of the Underwriters to the
Company constitute the only information relating to any Underwriter furnished to
the Company by the Underwriters specifically for inclusion in the Prospectus or
the Registration Statement. The Company has not distributed any offering
material in connection with the offering or sale of the Shares other than the
Registration Statement, the preliminary prospectus, the Prospectus or any other
materials, if any, permitted by the Act.
(d) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to statements or omissions in any
preliminary prospectus based upon information relating to any Underwriter
furnished to the Company by such Underwriter through you expressly for use
therein.
(e) Each of the Company and its Significant Subsidiaries set forth on
the attached Schedule II (the "Significant Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified would
not have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole.
(f) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities (other than those being offered pursuant to the
concurrent Notes offering), commitments of sale or liens (other than those
granted pursuant to the credit agreement between the Company and Harris Trust
and Savings Bank dated June 19, 1996) granted or issued by the Company or any of
its Significant Subsidiaries relating to or entitling any person to purchase or
otherwise to acquire any shares of the capital stock of the Company or any of
its Significant Subsidiaries, except as otherwise disclosed in the Registration
Statement.
(g) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights; and the Shares have been duly
authorized and, when issued and delivered to the Underwriters against payment
therefor as provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(h) All of the outstanding shares of capital stock of each of the
Company's Significant Subsidiaries have been duly authorized and validly issued
and are fully paid and non-assessable, and any capital stock of a Significant
Subsidiary owned by the Company, directly or indirectly through one or more
Significant Subsidiaries, is owned free and clear of any security interest,
claim, lien (other than those granted pursuant to the Company's credit agreement
between the Company and Harris Trust and Savings Bank dated June 19, 1996),
encumbrance or adverse interest of any nature (a "Lien").
(i) The authorized capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus.
(j) Neither the Company nor any of its Significant Subsidiaries is in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument which violation
or default would have a material adverse effect on the Company and its
subsidiaries, taken as a whole, to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries or their respective property is bound.
(k) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required and shall
be obtained as provided by this Agreement, under the securities or Blue Sky laws
of the various states), (ii) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of the
Company or any of its Significant Subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument the breach of or default under
which would have a material adverse effect on the Company and its subsidiaries,
taken as a whole, to which the Company or any of its Significant Subsidiaries is
a party or by which the Company or any of its Significant Subsidiaries or their
respective property is bound, (iii) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of its
Significant Subsidiaries or their respective property or (iv) result in the
suspension, termination or revocation of any Authorization (as defined in
subparagraph (n) below) of the Company or any of its Significant Subsidiaries or
any other impairment of the rights of the holder of any such Authorization.
(l) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of its
Significant Subsidiaries is or could be a party or to which any of their
respective property is or could be subject that are required to be described in
the Registration Statement or the Prospectus and are not so described and, to
the best of the Company's knowledge, no such proceedings which may be material
with respect to the Company and its subsidiaries taken as a whole have been
threatened against the Company or any of its Significant Subsidiaries; nor are
there any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so described or filed as
required.
(m) Neither the Company nor any of its Significant Subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a material adverse effect on the business,
prospects, financial condition or results of operation of the Company and its
subsidiaries, taken as a whole.
(n) Each of the Company and its Significant Subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including, without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business, except where
the failure to have any such Authorization or to make any such filing or notice
would not, singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole. Each such Authorization is valid and in
full force and effect and each of the Company and its Significant Subsidiaries
is in compliance in all material respects with all the terms and conditions
thereof and with the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event has occurred
(including, without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization or
results or, after notice or lapse of time or both, would result in any other
impairment of the rights of the holder of any such Authorization; except where
such failure to be valid and in full force and effect or to be in compliance,
the occurrence of any such event or the presence of any such restriction would
not, singly or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole.
(p) This Agreement has been duly authorized, executed and delivered by
the Company.
(q) Arthur Andersen LLP are independent public accountants with respect
to the Company and its subsidiaries as required by the Act.
(r) The consolidated financial statements included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto), together
with related schedules and notes, present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and its subsidiaries on the basis stated therein at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared on a
basis consistent with such financial statements and the books and records of the
Company.
(s) The Company and each of its Significant Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(t) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in
the Prospectus, will not be, an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended, or a "holding company" as such
term is defined in the Public Utility Holding Company Act of 1935, as amended.
(u) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(v) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its Significant
Subsidiaries and (iii) neither the Company nor any of its Significant
Subsidiaries has incurred any material liability or obligation, direct or
contingent that is likely to have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(w) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
Section 7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter, its directors, its officers and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, to reimburse
any legal or other expenses reasonably incurred in connection with investigating
or defending any matter, including any action, that could give rise to any such
losses, claims, damages, liabilities or judgments as such expenses are incurred)
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company by such Underwriter through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter who failed to deliver a Prospectus (as then amended or supplemented,
provided by the Company to the several Underwriters in the requisite quantity
and on a timely basis to permit proper delivery on or prior to the Closing Date)
to the person asserting any losses, claims, damages and liabilities and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or omission
was cured in such Prospectus and such Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to such Underwriter, and
to reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any loss, claim, damage, liability or
action as such expenses are incurred, but only with reference to information
relating to such Underwriter furnished in writing to the Company by such
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Donaldson, Lufkin & Jenrette Securities Corporation, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in the case
of parties indemnified pursuant to Section 7(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than thirty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) 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 hand from the offering
of the Shares or (ii) if the allocation provided by clause 7(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, 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 hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions, but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Shares, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Underwriters 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 Section 7(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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action, that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) At the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before or contemplated by
the Commission.
(c) The Prospectus and any amendment or supplement thereto shall have
been filed with the Commission in the manner and within the time period required
by Rules 434 and 424(b) under the Act.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any adverse change or any development involving a
prospective adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there shall not have been any adverse
change or any development involving a prospective adverse change in the capital
stock or in the long-term debt of the Company or any of its Significant
Subsidiaries and (iii) neither the Company nor any of its Significant
Subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(d)(i),
8(d)(ii) or 8(d)(iii), in your judgment, is material and adverse to the Company
and its subsidiaries taken as a whole and, in your judgment, makes it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus.
(e) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by the Chairman of the Board, the President or one of the
Executive Vice Presidents and the Chief Financial Officer or the Vice President
and Controller of the Company, confirming the matters set forth in Sections
6(v), 8(a), 8(b), 8(c) and 8(d) and that the Company has complied with all of
the agreements and satisfied all of the conditions herein contained and required
to be complied with or satisfied by the Company on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Simpson Thacher & Bartlett, counsel for the Company, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority
to carry on its business as described in the Prospectus;
(ii) the Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as provided by
this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any preemptive
or similar rights;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Registration Statement has become effective under the
Act and the Prospectus was filed with the Commission pursuant to Rule
424 within the applicable time period prescribed by Rule 424;
(v) the statements under the caption "Description of Capital
Stock" in the Prospectus and Item 15 of Part II of the Registration
Statement, insofar as such statements constitute a summary of (i) the
terms of the Company's capital stock (including the Shares), constitute
accurate summaries of the terms of such capital stock in all material
respects and (ii) the legal matters, documents or proceedings referred
to therein, are accurate in all material respects;
(vi) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended; and
(vii) (A) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus (except
for financial statements and other financial data included therein as
to which no opinion need be expressed) complied when so filed as to
form in all material respects with the Exchange Act, (B) the
Registration Statement and the Prospectus and any supplement or
amendment thereto (except for the financial statements and other
financial data included therein as to which no opinion need be
expressed) complied when so filed as to form in all material respects
with the Act, (C) such counsel has no reason to believe that at the
time the Registration Statement, or any further amendment thereto made
by the Company prior to the Closing Date, became effective, the
Registration Statement (except for the financial statements and other
financial data included therein as to which such counsel need not
express any belief and except for the part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act")) contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (D) such counsel has no
reason to believe that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other financial
data, as to which such counsel need not express any belief) contains
any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (E)
to such counsel's knowledge, no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto
and no order directed at any document incorporated by reference in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto has been issued, and to such counsel's knowledge, no
proceedings for that purpose have been instituted or threatened by the
Commission.
The opinion of Simpson Thacher & Bartlett described in Section 8(f)
above shall be rendered to you at the request of the Company and shall so state
therein. In giving such opinion, Simpson Thacher & Bartlett may state that (1)
their opinion is limited to matters governed by the federal laws of the United
States of America, the laws of the State of New York and the General Corporation
Law of the State of Delaware, and that such counsel is not admitted in the State
of Delaware and (2) as to matters of fact, they rely to the extent they deem
proper on certificates of responsible officers of the Company and certificates
or other written statements of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company and its subsidiaries.
In giving such opinions with respect to the matters covered by Section
8(f)(vii), Simpson Thacher & Bartlett may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but is without independent check or verification except as specified.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of the General Counsel to the Company to the effect that:
(i) all the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
(ii) each of the Company's Significant Subsidiaries
incorporated in the United States is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority to carry on its business as
described in the Prospectus; and with respect to each of the Company's
Significant Subsidiaries incorporated in a jurisdiction outside the
United States, such counsel will make equivalent representations in
accordance with the laws of the jurisdiction of each such non-United
States Significant Subsidiary;
(iii) each of the Company and its Significant Subsidiaries
incorporated in the United States is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole; and with respect
to each of the Company's Significant Subsidiaries incorporated in a
jurisdiction outside the United States, such counsel will make
equivalent representations in accordance with the laws of the
jurisdiction of each such non-United States Significant Subsidiary;
(iv) all of the outstanding shares of capital stock of each of
the Company's Significant Subsidiaries incorporated in the United
States have been duly authorized and validly issued and are fully paid
and non-assessable, and are owned by the Company, directly or
indirectly, through one or more subsidiaries, free and clear of any
Lien; and with respect to each of the Company's Significant
Subsidiaries incorporated in a jurisdiction outside the United States,
such counsel will make equivalent representations in accordance with
the laws of the jurisdiction of each such non-United States Significant
Subsidiary;
(v) neither the Company nor, to the best of such counsel's
knowledge, any of its Significant Subsidiaries is in violation of its
respective charter or by-laws and, to the best of such counsel's
knowledge, neither the Company nor any of its Significant Subsidiaries
is in default in the performance of any obligation, agreement, covenant
or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which the Company or any of
its Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries or their respective property is bound
the violation or default of which would have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(vi) the execution, delivery and performance of this Agreement
by the Company, the compliance by the Company with all the provisions
hereof and the consummation of the transactions contemplated hereby
will not (A) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or
agency (except such as may be required under the securities or Blue Sky
laws of the various states), (B) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the charter
or by-laws of the Company or, to the best of such counsel's knowledge,
any of its Significant Subsidiaries or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the
Company or any of its Significant Subsidiaries is a party or by which
the Company or any of its Significant Subsidiaries or their respective
property is bound, (C) to the best of such counsel's knowledge, violate
or conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any of its Significant Subsidiaries or
their respective property or (D) to the best of such counsel's
knowledge, result in the suspension, termination or revocation of any
Authorization of the Company or any of its Significant Subsidiaries or
any other impairment of the rights of the holder of any such
Authorization;
(vii) (A) there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge, threatened to
which the Company is or could be a party or to which any of its
property is or could be subject that are required to be described in
the Registration Statement or the Prospectus and are not so described,
or of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not so described or filed as required and (B) to the best of
such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened to which any of the Company's
Significant Subsidiaries is or could be a party or to which any of
their respective property is or could be subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described, or of any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
(viii) to the best of such counsel's knowledge, neither the
Company nor any of its Significant Subsidiaries has violated any
provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a material adverse effect on
the business, prospects, financial condition or results of operation of
the Company and its subsidiaries, taken as a whole;
(ix) (A) the Company has such Authorizations of, and has made
all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or
notice would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole; to
the best of such counsel's knowledge, each such Authorization is valid
and in full force and effect and the Company is in compliance in all
material respects with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing bodies
having jurisdiction with respect thereto; and, to the best of such
counsel's knowledge, no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization
or results or, after notice or lapse of time or both, would result in
any other impairment of the rights of the holder of any such
Authorization; except where such failure to be valid and in full force
and effect or to be in compliance, the occurrence of any such event or
the presence of any such restriction would not, singly or in the
aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole; and (B) to the best of such counsel's
knowledge, each of the Company's Significant Subsidiaries has such
Authorizations of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals as are necessary to
own, lease, license and operate its respective properties and to
conduct its business, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or
in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole; to the best of such counsel's
knowledge, each such Authorization is valid and in full force and
effect and each of the Company's Significant Subsidiaries is in
compliance in all material respects with all the terms and conditions
thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and, to the
best of such counsel's knowledge, no event has occurred (including,
without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both,
would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both,
would result in any other impairment of the rights of the holder of any
such Authorization; except where such failure to be valid and in full
force and effect or to be in compliance, the occurrence of any such
event or the presence of any such restriction would not, singly or in
the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole;
(x) there are no contracts, agreements or, to the best of such
counsel's knowledge, understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company or to require the Company to include such securities with
the Shares registered pursuant to the Registration Statement; and
(xi) (A) such counsel has no reason to believe that at the
time the Registration Statement, or any further amendment thereto made
by the Company prior to the Closing Date, became effective, the
Registration Statement (except for the financial statements and other
financial data included therein as to which such counsel need not
express any belief and except for the part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act) contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(B) such counsel has no reason to believe that the Prospectus, as
amended or supplemented, if applicable (except for the financial
statements and other financial data, as to which such counsel need not
express any belief) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In giving such opinions as described in Section 8(g) above, the General
Counsel may state that such counsel relies to the extent he deems proper upon
counsel located in jurisdictions in which such counsel is not admitted to
practice.
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Milbank, Tweed, Hadley & McCloy, counsel for the Underwriters,
with respect to the Prospectus and such other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(i) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Arthur Andersen LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement and the
Prospectus.
(j) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(k) The Shares shall have been duly listed for quotation on the Nasdaq
National Market.
(l) The Company shall not have failed on or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company on or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to the Representative on the
applicable Additional Shares Closing Date of such documents as it may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of such Additional Shares and other matters related to the issuance
of such Additional Shares.
SECTION 9. Effectiveness of Agreement and Termination. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been any adverse effect or
development involving a prospective material adverse effect in the condition,
financial or otherwise, of the Company or any of its Significant Subsidiaries or
the earnings, affairs, or business prospects of the Company or any of its
Significant Subsidiaries, whether or not arising in the ordinary course of
business, which would, in your judgment, make it impracticable to market the
Shares on the terms and in the manner contemplated in the Prospectus, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in your judgment, is material and
adverse and, in your judgment, makes it impracticable to market the Shares on
the terms and in the manner contemplated in the Prospectus, (iii) the suspension
or material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange or the Nasdaq National Market or limitation on prices for securities or
other instruments on any such exchange or the Nasdaq National Market, (iv) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (v) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
Significant Subsidiaries, taken as a whole, (vi) the declaration of a banking
moratorium by either federal or New York State authorities or (vii) the taking
of any action by any federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your opinion has a material adverse
effect on the financial markets in the United States.
If on the Closing Date or on an Additional Shares Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it has
or they have agreed to purchase hereunder on such date and the aggregate number
of Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the total number of Firm Shares or Additional Shares, as the
case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares which any Underwriter
has agreed to purchase pursuant to Section 2 hereof be increased pursuant to
this Section 9 by an amount in excess of one-ninth of such number of Shares
without the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares to be purchased by
all Underwriters and arrangements satisfactory to you and the Company for
purchase of such Firm Shares are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
business days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. If, on an Additional Shares Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such date, the non-defaulting Underwriters shall have the option to
(i) terminate their obligation hereunder to purchase such Additional Shares or
(ii) purchase not less than the number of Additional Shares that such
non-defaulting Underwriters would have been obligated to purchase on such date
in the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from any liability it may have to the Company
and the other Underwriters for damages caused by its default.
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to EMCOR
Group, Inc., 101 Merritt Seven Corporate Park, Norwalk, Connecticut, 06851, and
(ii) if to any Underwriter, to you c/o Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing. The Company shall be entitled to rely upon any
request, consent, notice or agreement given or made on behalf of the
Underwriters by Donaldson, Lufkin & Jenrette Securities Corporation.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the officers or directors of any
Underwriter, any person controlling any Underwriter, the Company, the officers
or directors of the Company or any person controlling the Company, (ii)
acceptance of the Shares and payment for them hereunder and (iii) termination of
this Agreement.
If for any reason the Shares are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 9), the Company agrees to reimburse the several
Underwriters for all out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(k) hereof. However, if this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses. The Company also agrees to reimburse the several
Underwriters, their directors and officers and any persons controlling any of
the Underwriters for reasonable fees and expenses (including the fees and
disbursements of counsel) incurred by them in connection with enforcing their
rights hereunder (including, without limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
internal laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
EMCOR GROUP, INC.
By: _______________________
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
Acting severally on behalf of itself and the several
Underwriters named in Schedule I hereto
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: ____________________________
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SCHEDULE I
Number of Firm Shares
Underwriters to be Purchased
Donaldson, Lufkin & Jenrette Securities Corporation 900,000
Cleary, Gull, Reiland & McDevitt Inc. 40,000
Suntrust Equitable Securities 40,000
L.H. Friend, Weinress, Frankson & Presson, Inc. 40,000
Morgan Keegan & Company, Inc. 40,000
Sanders Morris Mundy Inc. 40,000
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Total: 1,100,000
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SCHEDULE II
Significant Subsidiaries
Comstock Canada
Drake & Scull Engineering
Dynalectric Company
Forest Electric
Gibson Electric
Hansen Mechanical
Hyre Electric
J.C. Higgins
Penguin Air Conditioning
Trautman & Shreve
University Mechanical
