<PAGE>
<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 25, 1996
REGISTRATION NO. 33-65203
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
WITCO CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE ONE AMERICAN LANE 13-1870000
(STATE OR OTHER JURISDICTION OF GREENWICH, CONNECTICUT 06831 (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION) (203) 552-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
------------------------
DUSTAN E. MCCOY, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ONE AMERICAN LANE
GREENWICH, CONNECTICUT 06831
(203) 552-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPIES TO:
DAVID G. ORMSBY, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA, 825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE AMOUNT OF
SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1)(2) PER UNIT(2)(3) PRICE(3)(4) FEE
<S> <C> <C> <C> <C>
Debt Securities,
Preferred Stock and
Common Stock........... -- -- $500,000,000 $100,000
Preferred Stock Purchase
Rights................. (5) -- -- --
Preferred Stock.......... (6) -- -- --
Common Stock and Related
Rights................. (7) -- -- --
</TABLE>
(1) If any Debt Securities are issued at an original issue discount, then such
greater principal amount as shall result in an aggregate initial offering
price of $500,000,000. In no event will the aggregate initial offering price
of Debt Securities, Preferred Stock and Common Stock issued under this
Registration Statement exceed $500,000,000.
(2) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3 under the Securities Act.
(3) The proposed maximum offering price per unit will be determined from time to
time by the Registrant in connection with, and at the time of, the issuance
by the Registrant of the securities registered hereunder.
(4) Estimated solely for the purposes of computing the registration fee pursuant
to Rule 457(o) of the Securities Act.
(5) Such indeterminate number of Rights to purchase Series A Participating
Cumulative Preferred Stock of the Registrant under the Registrant's Rights
Agreement as may be issued together with shares of Common Stock being
registered hereunder.
(6) Such indeterminate number of shares of Preferred Stock of the Registrant as
may be issuable in exchange for, or upon conversion of, the securities of
the Registrant registered hereunder.
(7) Such indeterminate number of shares of Common Stock of the Registrant (and
related Rights to purchase Series A Participating Cumulative Preferred Stock
of the Registrant) as may be issuable in exchange for, or upon conversion
of, the securities of the Registrant registered hereunder.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
<PAGE>
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION, OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JANUARY 25, 1996
PROSPECTUS
WITCO CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK AND RELATED PREFERRED STOCK PURCHASE RIGHTS
------------------------
Witco Corporation (the 'Company') intends to issue from time to time its
(a) unsecured debt securities, which may either be senior (the 'Senior Debt
Securities') or subordinated (the 'Subordinated Debt Securities'; the Senior
Debt Securities and the Subordinated Debt Securities being herein referred to
collectively as the 'Debt Securities'), (b) shares of preferred stock, without
par value (the 'Preferred Stock'), and (c) shares of common stock, par value
$5.00 per share (the 'Common Stock'), and related preferred stock purchase
rights, having an aggregate initial public offering price not to exceed
$500,000,000 or the equivalent thereof in one or more foreign currencies or
composite currencies, including European Currency Units, on terms to be
determined at the time of sale. The Debt Securities, Preferred Stock and Common
Stock offered hereby (collectively, the 'Offered Securities') may be offered
separately or as units with other Offered Securities, in separate series in
amounts, at prices and on terms to be determined at the time of sale and to be
set forth in a supplement to this Prospectus (a 'Prospectus Supplement').
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered, such as, where applicable, (a) in the case of
Debt Securities, the specific designation, aggregate principal amount, currency,
ranking, denomination, maturity, priority, interest rate (which may be variable
or fixed), time of payment of interest, terms of redemption at the option of the
Company or repayment at the option of the holder or for sinking fund payments,
the designation of the Trustee acting under the applicable Indenture and the
initial public offering price, (b) in the case of Preferred Stock, the specific
title, number of shares or fractional interests therein, and the dividend,
liquidation, redemption, conversion, voting and other rights and the initial
public offering price, (c) in the case of Common Stock, the number of shares and
the initial public offering price and (d) in the case of all Offered Securities,
whether such Offered Security will be offered separately or as a unit with other
Offered Securities, will be set forth in the accompanying Prospectus Supplement.
The Company's Common Stock is listed on the New York Stock Exchange and the
Frankfurt Stock Exchange. Any Common Stock offered will be listed, subject to
notice of issuance, on such exchanges.
The Prospectus Supplement will also contain information, where applicable,
concerning certain United States Federal income tax considerations relating to,
and any listing on a securities exchange of, the Offered Securities covered by
the Prospectus Supplement.
The Offered Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. If any
agents of the Company, or any underwriters or dealers are involved in the sale
of any Offered Securities in respect of which this Prospectus is being
delivered, the names of such agents, underwriters or dealers and any applicable
fees or commissions and the net proceeds to the Company from such sale will be
set forth in the applicable Prospectus Supplement. See 'Plan of Distribution'.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS JANUARY , 1996.
<PAGE>
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the 'Commission'). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Regional Offices of the Commission at Suite 1400, Northwestern Atrium
Center, 500 West Madison Street, Chicago, Illinois 60661 and Seven World Trade
Center, Suite 1300, New York, New York 10048. In addition, copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Such
reports, proxy statements and other information concerning the Company can also
be inspected at the offices of The New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the 'Securities Act') with
respect to the securities offered hereby. For further information with respect
to the Company and the Offered Securities, reference is made to such
Registration Statement and to the exhibits thereto. Statements contained herein
concerning the provisions of certain documents are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are hereby incorporated by reference into this Prospectus:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994;
(b) the Company's Quarterly Reports on Form 10-Q for the Quarters
ended March 31, 1995, June 30, 1995, and September 30, 1995;
(c) the Company's Current Reports on (i) Form 8-K dated as of
September 25, 1995, October 31, 1995, December 20, 1995, and January 18,
1996, and (ii) Form 8-K/A dated as of December 20, 1995; and
(d) the Company's Report on Form 8-A dated as of March 3, 1995.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein or in any Prospectus
Supplement modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS, OTHER THAN CERTAIN EXHIBITS TO
SUCH DOCUMENTS. COPIES OF THE INDENTURES SUMMARIZED BELOW ARE ALSO AVAILABLE
UPON REQUEST. REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO THE SECRETARY,
WITCO CORPORATION, ONE AMERICAN LANE, GREENWICH, CONNECTICUT 06831 (TELEPHONE:
(203) 552-2000).
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT
DELIVERED HEREWITH AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER, DEALER, OR AGENT. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
2
<PAGE>
<PAGE>
OF AN OFFER TO BUY ANY OFFERED SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH
THE OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING THE
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
THE COMPANY
Witco is a global manufacturer and marketer of specialty chemical and
petroleum products for use in a wide variety of industrial and consumer
applications. Most of the Company's products are sold to industrial customers
for use as additives and intermediates which impart particular characteristics
to such customers' end products. Established in 1920, Witco has ranked among the
Fortune 500 largest U.S. industrial firms for many years, ranking 493 for 1994.
At December 31, 1994, the Company had 7,955 employees worldwide.
In 1992 the Company completed the acquisition of the Industrial Chemicals
and Natural Substances divisions of Schering AG. As a result of this
acquisition, the Company's international presence expanded with the addition of
a large chemical manufacturing base in Germany and operations in Spain, the
United Kingdom, France, Italy, and Ecuador.
In September 1995, Witco announced its intention to divest its Lubricants
Group, which consists of its private branded motor oils and greases and its
Golden Bear naphthenics process oils and road service materials operations.
Results of its Lubricants Group are currently reported as a discontinued
operation.
On October 19, 1995, Witco completed the acquisition of OSi Specialties
Holding Company, subsidiaries of which are engaged in the manufacture of
silicone surfactants, amine catalysts, organofunctional silanes and specialty
fluids and operate manufacturing facilities in West Virginia, Europe, South
America and Asia.
Witco is a Delaware corporation with its principal executive offices
located at One American Lane, Greenwich, Connecticut 06831 (Telephone: (203)
552-2000).
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used to replace all or
part of the Company's short-term bank loans with long-term financing in the
public markets. Additionally, net proceeds will be used for general corporate
purposes, which may include additions to working capital, capital expenditures,
stock and debt repurchases, repayment of indebtedness and acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Company for each of the Company's fiscal years 1994, 1993, 1992,
1991 and 1990 and the nine-month period ended September 30, 1995:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED FISCAL YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ----------------------------------------
1995 1994 1993 1992 1991 1990
- ------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
6.24 4.82 2.00 3.75 4.33 5.12
</TABLE>
For purposes of computing the ratios of earnings to fixed charges, earnings
consist of consolidated pre-tax earnings from continuing operations,
amortization of capitalized interest, interest expense, rental expense factor
and minority interest less undistributed income of unconsolidated affiliates.
Fixed charges consist of interest incurred on indebtedness, the portion of
operating lease rentals deemed representative of the interest factor and the
amortization of debt expense.
DESCRIPTION OF DEBT SECURITIES
The Senior Debt Securities are to be issued under an Indenture, dated as of
February 1, 1993 (the 'Senior Indenture'), between the Company and The Chase
Manhattan Bank, N.A., as trustee, pursuant
3
<PAGE>
<PAGE>
to which the Company has issued an aggregate of $275,000,000 senior debt
securities. The Subordinated Debt Securities are to be issued under an Indenture
(the 'Subordinated Indenture'), between the Company and a commercial bank to be
selected as trustee. Copies of the Senior Indenture and the Subordinated
Indenture have been filed with the Commission as exhibits to the Registration
Statement. The Senior Indenture and the Subordinated Indenture are sometimes
herein referred to collectively as the 'Indentures'. The Chase Manhattan Bank,
N.A., is hereinafter referred to as the 'Senior Trustee' when referring to it in
its capacity as trustee under the Senior Indenture. The commercial bank to be
selected as trustee under the Subordinated Indenture is hereinafter referred to
as the 'Subordinated Trustee', and the term 'Trustee' as used herein refers to
either of the Senior Trustee and the Subordinated Trustee, or both, as
applicable. The following summaries of certain provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the Indentures do not purport
to be complete and are subject to and are qualified in their entirety by
reference to all the provisions of the Indenture applicable to a particular
series of Debt Securities (the 'Applicable Indenture'), including the
definitions therein of certain terms. Wherever particular Sections, Articles or
defined terms of the Applicable Indenture are referred to, it is intended that
such Sections, Articles or defined terms shall be incorporated herein by
reference. Articles and Section references used herein are references to the
Applicable Indenture. Capitalized terms not otherwise defined herein shall have
the meaning ascribed thereto by the Applicable Indenture.
The following sets forth certain general terms and provisions of the Debt
Securities offered hereby. The particular terms of the Debt Securities offered
by any Prospectus Supplement (the 'Offered Debt Securities') will be described
in the Prospectus Supplement relating to such Offered Debt Securities (the
'Applicable Prospectus Supplement').
GENERAL
The Indentures do not limit the amount of Debt Securities that may be
issued thereunder and provide that Debt Securities may be issued thereunder from
time to time in one or more series. The Debt Securities will be unsecured
obligations of the Company. The Indentures do not contain any provisions
limiting the Company's ability to incur unsecured indebtedness, including in a
highly leveraged transaction. The Indentures do not contain any provisions that
would provide protection to holders of Debt Securities against a sudden and
dramatic decline in credit quality resulting from a takeover, recapitalization
or similar restructuring, except insofar as the limitations on mortgages and
sale and leaseback transactions described below would restrict certain types of
such transactions.
The Applicable Prospectus Supplement will describe the following terms of
the Offered Debt Securities: (a) the title of the Offered Debt Securities; (b)
whether the Offered Debt Securities are Senior Debt Securities or Subordinated
Debt Securities; (c) any limit on the aggregate principal amount of the Offered
Debt Securities; (d) the Person to whom any interest on the Offered Debt
Securities is payable if other than the Person in whose name any such Offered
Debt Securities are registered; (e) the date or dates on which the principal of
the Offered Debt Securities will mature; (f) the rate or rates per annum (which
may be fixed or variable) at which the Offered Debt Securities will bear
interest, if any, and the date or dates from which such interest, if any, will
accrue; (g) the dates on which such interest, if any, on the Offered Debt
Securities will be payable and the Regular Record Dates for such Interest
Payment Dates; (h) the place or places where the principal of and any premium
and interest on the Offered Debt Securities shall be payable; (i) any mandatory
or optional sinking funds or analogous provisions; (j) the date, if any, after
which and the price or prices at which the Offered Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed and the other
detailed terms and provisions of any such optional or mandatory redemption
provision; (k) the obligation of the Company, if any, to redeem or repurchase
the Offered Debt Securities at the option of the Holder; (l) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which the Offered Debt Securities shall be issuable; (m) if other than the
principal amount thereof, the portion of the principal amount of the Offered
Debt Securities that will be payable upon the declaration of acceleration of the
Maturity thereof; (n) the currency of payment of principal of and any premium
and interest on the Offered Debt Securities and, if other than United States
currency, the manner of determining the equivalent thereof in United States
currency for any purpose; (o) any index used to
4
<PAGE>
<PAGE>
determine the amount of payment of principal of, and any premium and interest
on, the Offered Debt Securities; (p) if the Offered Debt Securities will be
issuable only in the form of a Global Security, the Depositary or its nominee
with respect to the Offered Debt Securities and the circumstances under which
the Global Security may be registered for transfer or exchange in the name of a
Person other than the Depositary or its nominee; (q) the applicability, if any,
of the provisions described below under the heading 'Defeasance and Covenant
Defeasance'; (r) whether the Debt Securities are convertible into Common Stock
or Preferred Stock and the terms and conditions of such convertibility; (s) any
additional Event of Default, and in the case of any Offered Debt Securities that
are Subordinated Debt Securities, any additional Event of Default that would
result in the acceleration of the Maturity thereof and (t) any other terms of
the Offered Debt Securities (Section 301).
Unless otherwise indicated in the Applicable Prospectus Supplement,
principal of, premium, if any, and interest on the Debt Securities will be
payable, and the transfer of Debt Securities will be registrable, at the office
or agency of the Company in each Place of Payment maintained by the Company and
at any other office or agency maintained by the Company for such purpose, except
that, at the option of the Company, interest may be paid by mailing a check to
the address of the Person entitled thereto as it appears on the register for the
Debt Securities (Sections 301, 305, 307 and 1002).
The Debt Securities will be issued only in fully registered form without
coupons and, unless otherwise indicated in the Applicable Prospectus Supplement,
in denominations of $1,000 or integral multiples thereof (Section 302). No
service charge will be made for any registration of transfer or exchange of the
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge imposed in connection therewith
(Section 305).
All money paid by the Company to the Trustee or any Paying Agent for the
payment of principal of, and any premium and interest on, any Debt Security
which remains unclaimed for two years after such principal, premium or interest
shall have become due and payable, may be repaid to the Company and thereafter,
the Holder of such Debt Security shall look only to the Company for payment
thereof (Section 1003).
Both Senior Debt Securities and Subordinated Debt Securities may be issued
as Original Issue Discount Securities to be offered and sold at a substantial
discount below their stated principal amount. 'Original Issue Discount Security'
means any Debt Security which provides for an amount less than the principal
amount thereof to be due and payable upon the declaration of acceleration of the
Maturity thereof upon the occurrence of an Event of Default and the continuation
thereof (Section 101).
The Applicable Prospectus Supplement will also describe any material United
States Federal income tax consequences or other special considerations
applicable to the series of Debt Securities to which such Prospectus Supplement
relates, including those applicable to (a) Debt Securities with respect to which
payments of principal, premium or interest are determined with reference to an
index or formula (including changes in prices of particular securities,
currencies or commodities), (b) Debt Securities with respect to which principal,
premium or interest is payable in a foreign or composite currency, (c) Original
Issue Discount Securities and (d) variable rate Debt Securities that are
exchangeable for fixed rate Debt Securities.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Applicable Prospectus Supplement, the
following provisions will apply to the Subordinated Debt Securities.
The payment of the principal of, premium, if any, and interest on the
Subordinated Debt Securities will be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (as defined below) (Section
1301). Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings of the Company, the holders of all Senior Indebtedness will be
entitled to receive payment in full of all amounts due or to become due thereon
before the Holders of the Subordinated Debt Securities will be entitled to
receive any payment in respect of the principal of, premium, if any, or interest
on the Subordinated Debt Securities (Section 1302). In the event of the
acceleration of the Maturity of any Subordinated Debt Securities of any
5
<PAGE>
<PAGE>
series, the holders of all Senior Indebtedness will be entitled to receive
payment in full of all amounts due or to become due thereon before the Holders
of the Subordinated Debt Securities will be entitled to receive any payment of
the principal of, premium, if any, or interest on the Subordinated Debt
Securities of such series or on account of the purchase or other acquisition of
Subordinated Debt Securities of such series (Section 1303). Accordingly, in case
of such an acceleration, all Senior Indebtedness would have to be repaid before
any payment could be made in respect of the Subordinated Debt Securities. No
payments on account of principal, premium, if any, or interest in respect of the
Subordinated Debt Securities or on account of the purchase or other acquisition
of Subordinated Debt Securities may be made if there shall have occurred and be
continuing a default in any payment with respect to any Senior Indebtedness, or
an Event of Default with respect to any Senior Indebtedness permitting the
holders thereof to accelerate the maturity thereof, of if any judicial
proceeding shall be pending with respect to any such default (Section 1304).
By reason of such subordination, in the event of the insolvency of the
Company, creditors of the Company who are not holders of Senior Indebtedness or
the Subordinated Debt Securities may recover less, ratably, than holders of
Senior Indebtedness and may recover more, ratably, than Holders of the
Subordinated Debt Securities.
'Senior Indebtedness' is defined in the Subordinated Indenture to mean the
principal of, and premium, if any, and interest on (a) all indebtedness of the
Company for money borrowed, other than the Subordinated Debt Securities, and any
other indebtedness of the Company represented by a note, bond, debenture or
other similar evidence of indebtedness (including indebtedness of others
guaranteed by the Company), in each case whether outstanding on the date of
execution of the Subordinated Indenture or thereafter created, incurred or
assumed and (b) any amendments, renewals, extensions, modifications and
refundings of any such indebtedness, unless in any case in the instrument
creating or evidencing any such indebtedness or pursuant to which it is
outstanding it is provided that such indebtedness is not superior in right of
payment to the Subordinated Debt Securities. For the purposes of this
definition, 'indebtedness for money borrowed' is defined as (a) any obligation
of, or any obligation guaranteed by, the Company for the repayment of borrowed
money, whether or not evidenced by bonds, debentures, notes or other written
instruments, (b) any deferred payment obligation of, or any such obligation
guaranteed by, the Company for the payment of the purchase price of property or
assets evidenced by a note or a similar instrument and (c) any obligation of, or
any such obligation guaranteed by, the Company for the payment of rent or other
amounts under a lease of property or assets if such obligation is required to be
classified and accounted for as a capitalized lease on the balance sheet of the
Company under generally accepted accounting principles, in the case of each of
(a), (b) and (c) whether such indebtedness or obligation is outstanding on the
date of execution of the Subordinated Indenture or thereafter created, incurred
or assumed (Section 101).
The Subordinated Indenture will not limit the amount of other indebtedness,
including Senior Indebtedness, that may be issued by the Company or any of its
Subsidiaries.
EVENTS OF DEFAULT
The Senior Indenture (with respect to any series of Senior Debt Securities
then Outstanding) and, unless otherwise provided in the Applicable Prospectus
Supplement, the Subordinated Indenture (with respect to any series of
Subordinated Debt Securities then Outstanding), define an Event of Default as
any one of the following events: (a) default in the payment of any interest on
any Debt Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days (in the case of the
Subordinated Indenture, whether or not payment is prohibited by the
subordination provisions); (b) default in the payment of the principal of, or
premium, if any, on any Debt Security of that series at its Maturity (in the
case of the Subordinated Indenture, whether or not payment is prohibited by the
subordination provisions); (c) default in the deposit of any sinking fund
payment when and as due by the terms of a Debt Security of that series (in the
case of the Subordinated Indenture, whether or not payment is prohibited by the
subordination provisions); (d) default in the performance, or breach, of any
other covenant of the Company in the Applicable Indenture (other than covenants
or warranties included in the Applicable Indenture solely for the benefit of a
series of Debt Securities thereunder other than that series) and continuance of
such default for a period of 60 days
6
<PAGE>
<PAGE>
after either the Trustee or the Holders of at least 10% of the principal amount
of the Outstanding Debt Securities of that series have given written notice
specifying such failure as provided in the Applicable Indenture; (e) certain
events in bankruptcy, insolvency or reorganization of the Company; (f) a default
under any evidence of indebtedness for money borrowed by the Company with a
principal amount in excess of $10,000,000, which default results in such
indebtedness becoming due and payable prior to the date it would otherwise have
become due and payable without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled within a period of 10 days after
written notice has been given to the Company by the Trustee or by the Holders of
at least 10% of the principal amount of the Outstanding Debt Securities of that
series and (g) any other Event of Default provided with respect to Debt
Securities of that series (Section 501). If an Event of Default occurs with
respect to Debt Securities of any series, the Trustee shall give the Holders of
Debt Securities of such series notice of such default; provided, however, that
in the case of a default described in (d) above, no such notice to Holders shall
be given until at least 30 days after the occurrence thereof (Section 602).
If an Event of Default with respect to the Senior Debt Securities of any
series at the time Outstanding occurs and is continuing, either the Trustee or
the Holders of at least 25% of the aggregate principal amount of the Outstanding
Debt Securities of that series may declare the principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms thereof) of all the
Debt Securities of that series to be due and payable immediately. Payment of the
principal of the Subordinated Debt Securities may be accelerated only in the
case of certain events of bankruptcy, insolvency or reorganization of the
Company. The Trustee and the Holders will not be entitled to accelerate the
maturity of the Subordinated Debt Securities upon the occurrence of any of the
Events of Default described above except for those described in subparagraph (e)
above (i.e., certain events in bankruptcy, insolvency or reorganization of the
Company). Accordingly, there is no right of acceleration in the case of a
default in the performance of any other covenant with respect to the
Subordinated Debt Securities, including the payment of interest or principal.
Under certain circumstances any declaration of acceleration with respect to Debt
Securities of any series may be rescinded and past defaults (except, unless
theretofore cured, a default in the payment of principal of or interest on the
Debt Securities) may be waived by the Holders of a majority in aggregate
principal amount of the Debt Securities of such series then Outstanding (Section
502).
The Indentures provide that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity (Section 603). Subject
to such provisions for the indemnification of the Trustee and to certain other
conditions, the Holders of a majority of the aggregate principal amount of the
Outstanding Debt Securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series (Section 512).
No Holder of any series of Debt Securities will have any right to institute
any proceeding with respect to the Applicable Indenture or for any remedy
thereunder, unless: (a) such Holder previously has given to the Trustee under
the Applicable Indenture written notice of a continuing Event of Default with
respect to Debt Securities of that series; (b) the Holders of at least 25% of
the aggregate principal amount of the Outstanding Debt Securities of that series
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee; (c) in the 60-day period following receipt
of a written notice from a Holder, the Trustee has not received from the Holders
of a majority of the aggregate principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request and (d) the
Trustee shall have failed to institute such proceeding within such 60-day period
(Section 507). However, such limitations do not apply to a suit instituted by a
Holder of a Debt Security for enforcement of payment of the principal of and
premium, if any, or interest on such Debt Security on or after the respective
due dates expressed in such Debt Security (Section 508).
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligation under the
Indenture and as to any default in such performance.
7
<PAGE>
<PAGE>
Any payment default on any Debt Security, regardless of amount, where the
aggregate principal amount of the series of such Debt Security exceeds $10
million, or any other default that causes acceleration of any such Debt
Security, would give rise to a cross-default under the Company's $675 million
Credit Agreement dated as of October 18, 1995, among the Company, the lenders
set forth therein and Morgan Guaranty Trust Company of New York, as agent.
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that, if such provision is made applicable to the
Debt Securities of any series pursuant to Section 301 of the Applicable
Indenture (which will be indicated in the Applicable Prospectus Supplement), the
Company may elect either (a) to defease and be discharged from any and all
obligations in respect of such Debt Securities then outstanding (including, in
the case of Subordinated Debt Securities, the provisions described above under
the heading 'Subordination of Subordinated Debt Securities' and except for
certain obligations to register the transfer of or exchange of such Debt
Securities, replace stolen, lost or mutilated Debt Securities, maintain paying
agencies and hold monies for payment in trust) or (b) to be released from its
obligations with respect to such Debt Securities concerning the subordination
provisions described above under the heading 'Subordination of Subordinated Debt
Securities' and any other covenants set forth under 'Limitation on Mortgages',
'Limitation on Sale and Leaseback Transactions', 'Consolidation, Merger and Sale
of Assets' and the occurrence of an event described under clauses (c), (e) and
(g) under the heading 'Events of Default' or under clause (d) under the heading
'Events of Default' with respect to any defeased covenant shall no longer be an
Event of Default, in the case of either (a) or (b) above if the Company
deposits, in trust, with the Trustee, money or U.S. Government Obligations,
which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money, in an amount sufficient, without
reinvestment, to pay all the principal of and premium, if any, and interest on
such Debt Securities on the dates such payments are due (which may include one
or more redemption dates designated by the Company) and any mandatory sinking
fund or analogous payments thereon in accordance with the terms of such Debt
Securities. Such a trust may only be established if, among other things, (A) no
Event of Default or event which, with the giving of notice or lapse of time, or
both, would become an Event of Default under the Applicable Indenture shall have
occurred and be continuing on the date of such deposit, or with regard to any
Event of Default or any event described under clause (f) under the heading
'Event of Default' shall have occurred and be continuing at any time during the
period ending on the 123rd day following such date of deposit, (B) such deposit
will not cause the Trustee to have any conflicting interest with respect to
other securities of the Company and (C) the Company shall have delivered an
Opinion of Counsel to the effect that the Holders will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit or
defeasance and will be subject to Federal income tax in the same manner as if
such defeasance had not occurred.
In the event the Company fails to comply with its remaining obligations
with respect to such Debt Securities under the Applicable Indenture after
exercising its covenant defeasance option and such Debt Securities are declared
due and payable because of the subsequent occurrence of any Event of Default,
the amount of money and U.S. Government Obligations on deposit with the Trustee
may be insufficient to pay amounts due on the Debt Securities of such series at
the time of the acceleration resulting from such Event of Default. However, the
Company will remain liable in respect of such payments (See Article Thirteen and
Article Fourteen of the Senior Indenture and the Subordinated Indenture,
respectively).
MODIFICATION AND WAIVER
Modifications and amendments of the Applicable Indenture may be made by the
Company and the Trustee with the consent of the Holders of not less than 66 2/3%
of the aggregate principal amount of the Outstanding Debt Securities of all
series issued under the Applicable Indenture and affected by the modification or
amendments (voting as a single class); provided, however, that no such
modification or amendment may, without the consent of the Holders of all Debt
Securities affected thereby (a) change the stated maturity date of the principal
of, or any installment of principal of or interest on, any Debt Security; (b)
reduce the principal amount of, or the premium, if any, or (except as otherwise
provided in
8
<PAGE>
<PAGE>
the Applicable Prospectus Supplement) interest on, any Debt Security (including
in the case of an Original Issue Discount Security the amount payable upon
acceleration of the Maturity thereof); (c) change the place or currency of
payment of principal of, premium, if any, or interest on any Debt Security; (d)
impair the right to institute suit for the enforcement of any payment on any
Debt Security on or after the Stated Maturity thereof (or in the case of
redemption, on or after the Redemption Date); (e) in the case of the
Subordinated Indenture, modify the subordination provisions in a manner adverse
to the Holders of the Subordinated Debt Securities or (f) reduce the percentage
of the principal amount of Outstanding Debt Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults (Section 902).
The Holders of not less than 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of all Holders of Debt
Securities of that series, agree to waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture,
including the provisions described under 'Limitation on Mortgages' and
'Limitation on Sale and Leaseback' below (Section 1011). The Holders of a
majority of the aggregate principal amount of the Senior Debt Securities or the
Subordinated Debt Securities may, on behalf of all Holders of the Senior Debt
Securities or the Subordinated Debt Securities, respectively, waive any past
default under the Applicable Indenture, except a default in the payment of
principal, premium or interest or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series (Section 513).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof. (Section 101).
CERTAIN COVENANTS OF THE CORPORATION
Limitation on Mortgages. The Company may not create or assume and may not
permit any Subsidiary other than a Foreign Subsidiary (as defined below) to
create or assume any Mortgage (as defined below) of or upon any of its or their
assets, real or personal, or of or upon any income of profits therefrom, without
making effective provision whereby the Debt Securities shall be secured by such
Mortgage equally and ratably with any and all other obligations and Indebtedness
thereby secured, so long as any such other obligations and Indebtedness shall be
so secured; provided that the foregoing covenant shall not apply to any of the
following: (a) the creation of any Mortgage on any after-acquired property,
contemporaneously with the acquisition thereof or within 120 days thereafter, to
secure or provide for the payment of any part of the purchase price of such
property, or the assumption by the Company or any Subsidiary of any Mortgage
upon any after-acquired property existing at the time such property is acquired,
provided that the amount of any Indebtedness secured by any such Mortgage
created or assumed shall not exceed the cost to the Company or Subsidiary, as
the case may be, of the property covered by such Mortgage (including, in the
case of the assumption of such Mortgage, the amount of the Indebtedness secured
thereby), or the fair value (as determined by the Company's Board of Directors
(the 'Board of Directors')) of such property at the time the Mortgage is created
or assumed, whichever shall be less; (b) any Mortgage on any property acquired
by the Company or any Subsidiary existing at the time of such acquisition and
any Mortgage executed by any corporation acquired by the Company or any
Subsidiary and exclusively securing any Indebtedness existing at the time of
such acquisition, and, in each case, not assumed by the Company or any
Subsidiary; (c) any Mortgage executed by any Subsidiary and exclusively securing
any Indebtedness incurred by such Subsidiary to the Company or to one or more
other Subsidiaries; (d) the creation of one or more Mortgages for the sole
purpose of renewing or refunding in whole or in part one or more of the
Mortgages referred to in clauses (a), (b) or (c) above or one or more of the
Mortgages existing at the date of execution of the Applicable Indenture on any
assets of the Company or a Subsidiary; provided that the aggregate amount of
Indebtedness secured by any such renewal or refunding Mortgage shall not exceed
the aggregate amount of Indebtedness secured by the Mortgage or Mortgages being
9
<PAGE>
<PAGE>
renewed or refunded at the time of such renewal or refunding and that such
renewal or refunding Mortgage shall and improvements thereon be limited to (i)
all or any part of the same property (and improvements thereon) which secured
the Mortgage renewed or refunded or (ii) in the case of a simultaneous renewal
or refunding of one or more Mortgages on contiguous property (and improvements
thereon), all or any part of the same contiguous property which secured the
Mortgaged renewed or refunded; and provided further that in the case of any
renewal or refunding of a Mortgage of the type referred to in subsection (c)
above or this subsection (d), neither the Company nor any Subsidiary (other than
the Subsidiary whose property is subject thereto) shall assume any Indebtedness
secured by such renewal or refunding Mortgage; (e) liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course of
business for sums not yet due or being contested in good faith; (f) liens in
favor of the United States of America, or any State or subdivision thereof, or
any other county or subdivision thereof where the Company or any Subsidiary may
transact any of its business, or any governmental agency, to the extent required
in the ordinary course of business; (g) liens for taxes or assessments or
governmental charges or levies, if such taxes, assessments, governmental charges
or levies shall not at the time be due and payable, or if the same thereafter
can be paid without penalty, or if the same are being contested in good faith by
appropriate proceedings; (h) pledges or deposits to secure payment of worker's
compensation or insurance premiums, or in connection with tenders, bids or
contracts (other than contracts for the payment of money) or leases, deposits to
secure surety or appeal bonds, pledges or deposits in connection with contracts
made with or at the request of the United States of America or any State or any
agency of the United States or any such State, and pledges or deposits for
purposes similar to any of the above in the ordinary course of business and (i)
liens created by or resulting from any litigation or legal or administrative
proceeding which at the time is currently being contested in good faith by
appropriate proceedings; leases made or existing on property acquired in the
ordinary course of business and landlords, liens on property held under lease
(Section 1008).
Notwithstanding the foregoing limitation on Mortgages, the Company or any
Subsidiary may grant easements for ingress and egress over property owned by the
Company or such Subsidiary in favor of the United States or any state (or any
instrumentality of either) as is necessary to permit the attachment or removal
of any equipment or other property designed primarily for the purpose of
pollution control and with respect to which the Company or any Subsidiary may
have granted a lien or transferred title to such government or governmental
agency pursuant to any exception to the limitation on Mortgages or the
limitation on sale and leaseback described below in connection with the
financing of such anti-pollution equipment or other property; provided that any
such Mortgage on such anti-pollution equipment or property does not apply to any
other property owned by the Company or any Subsidiary and any such transfer of
title to such anti-pollution equipment or property does not include transfer of
title to any other property theretofore owned by the Company or any Subsidiary
(Section 1008).
The sale or other transfer of oil, gas or other minerals in place for a
period of time until, or in an amount such that, the transferee will realize
therefrom a specified amount (however determined) of money for such minerals, or
the sale or other transfer of any other interest in property of the character
commonly referred to as a production payment shall not be deemed to create any
Mortgage upon the assets of the Company or any Subsidiary (Section 1008). The
foregoing limitation on Mortgages is subject to the provision for 'Exempted
Indebtedness' described below (Section 1008).
Limitation on Sale and Leaseback Transactions. The Company may not, nor may
it permit any Subsidiary to enter into any arrangement with any person providing
for the leasing by the Company or any Subsidiary of any Principal Property
(except for temporary leases of not more than three years and except for leases
between the Company and a Subsidiary or between Subsidiaries), which property
has been or is to be sold or transferred by the Company or such Subsidiary to
such person unless either (a) the Company or such Subsidiary would be permitted
under the covenant described above under 'Limitation on Mortgages' to incur
Indebtedness secured by a Mortgage on the property to be leased equal in amount
to the Attributable Debt (as defined below) with respect to such sale and
leaseback transaction without equally and ratably securing the Debt Securities
or (b) the Company shall apply an amount at least equal to the net proceeds of
such sale or transfer or the fair value as determined by the Board of Directors
of such property, whichever is greater, to the redemption or retirement, within
120 days of the effective date of any such arrangement of Indebtedness of the
Company which is not subordinate or junior in right of payment to the Debt
Securities; provided, however, that in lieu of
10
<PAGE>
<PAGE>
applying all or any part of such amount to such redemption or retirement of such
Indebtedness, the Company may, within 75 days after such sale voluntarily retire
Indebtedness, excluding redemption and retirement of Indebtedness pursuant to
mandatory sinking fund or mandatory prepayment provisions or by payment at
maturity, and thereby reduce the amount of cash which the Company shall be
required to apply to the redemption or retirement of Indebtedness under this
Section by an amount equal to the aggregate of the principal amount of the
Indebtedness, as the case may be, so redeemed or retired.
The foregoing limitations on sale and leaseback transactions are subject to
the provision for 'Exempted Indebtedness' described below (Section 1009).
Exempted Indebtedness. Notwithstanding the provisions of the Indentures
which provide for limitations on Mortgages and on sale and leaseback
transactions, the Company and its Subsidiaries may incur Indebtedness secured by
Mortgages without securing the Debt Securities or may enter into sale and
leaseback transactions without redeeming or retiring other Indebtedness, or
there may be a combination of such transactions, if the sum of (a) the aggregate
amount of such otherwise prohibited Indebtedness then outstanding and (b)
Attributable Debt relating to otherwise prohibited sale and leaseback
transactions under then existing leases would not exceed 10% of Consolidated Net
Tangible Assets (as defined below) (Section 1010).
Leveraged Transactions. Except for the limitations on mortgages and sale
and leaseback transactions referred to above and on consolidations, mergers or
transfers of the Company's assets substantially as an entirety referred to
below, the Indentures and the terms of the Debt Securities do not contain any
covenants or other provisions designed to afford holders of any Debt Securities
protection in the event of a highly leveraged transaction involving the Company.
Applicability of Covenants to the Subordinated Securities. Any series of
Subordinated Securities may provide that either or both of the covenants
described above shall not be applicable to the Securities of such series
(Section 301).
Certain Definitions. Certain terms are defined in the Indentures (Section
101) and are used in this Prospectus as follows:
'Attributable Debt' means, as to any particular lease relating to a
sale and lease back transaction of a Principal Property under which any
Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent (discounted from the
respective due dates thereof at the interest rate from time to time being
used by the Company to determine its liability in respect of capitalized
leases) required to be paid by such Person under such lease during the
remaining term thereof. The net amount of rent required to be paid under
any such lease for any such period shall be the total amount of the rent
payable by the lessee with respect to such period, but may exclude amounts
required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, utilities, operating and labor costs and similar
charges. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount of rent shall also include the
amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first day upon which it may be so
terminated.
'Consolidated Net Tangible Assets' means total consolidated assets of
the Company and its Subsidiaries, less the following: (a) current
liabilities of the Company and its Subsidiaries; (b) all depreciation and
valuation reserves and all other reserves (except (i) reserves for
contingencies which have not been allocated to any particular purpose and
(ii) deferred credits, including deferred federal and foreign income taxes
and deferred investment tax credits) of the Company and its Subsidiaries;
(c) the net book amount of all intangible assets of the Company and its
Subsidiaries, including, but without limitation, the unamortized portions
of such items as goodwill, trademarks, trade names, patents and debt
discount and expense less debt premium and (d) appropriate adjustments on
account of minority interests of other Persons holding stock in
Subsidiaries.
'Foreign Subsidiary' means any Subsidiary substantially all of the
operating assets of which are located, and substantially all of the
business for which is carried on outside the United States of America and
its territories and possessions, and includes any Subsidiary formed under
the laws of
11
<PAGE>
<PAGE>
any State of the United States of America which is primarily engaged in
financing the operations of the Company or its Subsidiaries, or both,
outside the United States of America and its territories and possessions.
'Indebtedness' means all items of indebtedness or liability (except
capital and surplus) which in accordance with generally accepted accounting
principles would be included in determining total liabilities as shown on
the liability side of a balance sheet as at the date as of which
indebtedness is to be determined, indebtedness secured by any Mortgage
existing on property owned subject to such Mortgage, whether or not the
indebtedness secured thereby shall have been assumed and guarantees,
endorsements (other than for purposes of collection) and other contingent
obligations in respect of, or to purchase or otherwise acquire,
indebtedness of others, unless the amount thereof is included in
indebtedness under the preceding clauses.
'Mortgage' means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other
similar encumbrance.
'Principal Property' means any manufacturing facility located within
the United States of America owned or leased by the Company or any
Subsidiary except any such manufacturing facility which the Board of
Directors by resolution declares is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety.
'Subsidiary' means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, 'voting stock' means
stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such
voting power by reason of any contingency.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company (such transaction being herein
referred to as a 'Merger Transaction') unless: (a) in case the Company shall
consolidate with or merge into another person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the Person
formed by such Merger Transaction shall be a corporation, partnership or trust
validly organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by
supplemental indenture, the payment of the principal of and any premium and
interest on all the Debt Securities and the performance of every covenant of the
Indentures; (b) immediately after giving effect to any such Merger Transaction
and treating any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such Merger Transaction as having been incurred by the
Company or such Subsidiary at the time of such Merger Transaction, no Event of
Default shall have happened and be continuing; (c) if, as a result of any Merger
Transaction, properties or assets of the Company would become subject to a
mortgage, pledge, lien, security interest or other encumbrance which would not
be permitted by the Indentures, the Company or such successor Person shall take
such steps as shall be necessary to secure the Debt Securities equally and
ratably with (or prior to) all indebtedness secured thereby and (d) the Company
has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such Merger Transaction and any required supplemental
indenture comply with all the provisions of this covenant (Section Eight).
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged
for or converted into shares of Common Stock or Preferred Stock, including the
conversion price or exchange ratio (or the method of calculating the same), the
conversion or exchange period (or the method of determining the same), whether
conversion or exchange will be mandatory or at the option of the holder or the
Company, provisions for adjustment of the conversion price or the exchange ratio
and provisions
12
<PAGE>
<PAGE>
affecting conversion or exchange in the event of the redemption of such Debt
Securities, will be set forth in the Prospectus Supplement relating thereto.
GLOBAL SECURITIES
The Debt Securities may be issued in whole or in part in the form of one or
more Global Securities that will be deposited with, or on behalf of, a
depositary (the 'Depositary') identified in the Applicable Prospectus Supplement
relating to such Debt Securities. Unless and until it is exchangeable in whole
or in part for Debt Securities in definitive form, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor of such Depositary or a nominee of such successor (Section 305).
The specific terms of the depositary arrangement, if any, with respect to a
series of Debt Securities will be described in the Applicable Prospectus
Supplement relating to such series. The Company anticipates that the following
provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a Global Security will be limited to
persons who have accounts with the Depositary for such Global Security or its
nominee ('Participants') or persons who may hold interests through Participants.
Such accounts shall be designated by the underwriters or agents with respect to
the Debt Securities underwritten or solicited by them or by the Company in the
case of Debt Securities offered and sold directly by the Company. The Company
will obtain confirmation from the Depositary that upon the issuance of a Global
Security, the Depositary for such Global Security will credit, on its book-entry
registration and transfer system, the Participants' accounts with the respective
principal amounts of the Debt Securities represented by such Global Security.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of such ownership interests will be effected only through records
maintained by the Depositary (with respect to interests of Participants), and on
the records of Participants (with respect to interests of persons held through
Participants). The laws of some states may require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to own, transfer or pledge
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Applicable Indenture. Except as provided below, owners of beneficial interests
in a Global Security will not be entitled to have the Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of the Debt Securities in definitive
form and will not be considered the owners or Holders thereof under the
Applicable Indenture. Accordingly, each person owning a beneficial interest in
such a Global Security must rely on the procedures of the Depositary and, if
such person is not a Participant, on the procedures of the Participant through
which such person owns its interest, to exercise any rights of a Holder under
the Applicable Indenture. The Company understands that under existing industry
practices, in the event the Company requests any action of Holders or an owner
of a beneficial interest in such Global Security desires to give or take any
action which a Holder is entitled to give or take under the Applicable
Indenture, the Depositary would authorize the Participants holding the relevant
beneficial interests to give or take such action, and such Participants would
authorize beneficial owners owning through such Participants to give or take
such action or would otherwise act upon the instructions of beneficial owners
owning through them.
Payment of principal of, and premium and interest, if any, on, Debt
Securities registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner of
the Global Security representing such Debt Securities. None of the Company, the
Trustee, any Paying Agent or any other agent of the Company or the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
13
<PAGE>
<PAGE>
The Company will obtain confirmation from the Depositary that upon receipt
of any payment of principal of, or premium or interest on, a Global Security,
the Depositary will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of the Depositary.
Payments by Participants to owners of beneficial interests in such Global
Security held through such Participants will be the responsibility of such
Participants, as is now the case with securities held for the accounts of
customers registered in 'street name'.
If the Depositary for any Debt Securities represented by a Global Security
notifies the Company that it is unwilling or unable to continue as Depositary or
ceases to be a clearing agency registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within ninety days after
receiving such notice or becoming aware that the Depositary is no longer so
registered or if an Event of Default, or an event which with notice, or lapse of
time or both would be an event of default has occurred and is continuing, the
Company will issue such Debt Securities in definitive form upon registration or
transfer of, or in exchange for, such Global Security. In addition, the Company
may, at any time, and in its sole discretion, determine not to have the Debt
Securities represented by one or more Global Securities and, in such event, will
issue Debt Securities in definitive form in exchange for all of the Global
Securities representing such Debt Securities. (Section 305).
GOVERNING LAW
The Indentures and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The authorized stock of the Company consists of 100,000,000 shares of
Common Stock, par value $5.00 per share, 14,386 shares of $2.65 Cumulative
Convertible Preferred Stock, par value $1.00 per share, and 8,300,000 shares of
Series Preferred Stock, without par value (the 'Series Preferred Stock'). On
November 30, 1995, there were 56,433,979 shares of Common Stock and 6,880 shares
of $2.65 Cumulative Convertible Preferred Stock outstanding. 300,000 shares of
Series A Participating Cumulative Preferred Stock, without par value, have been
authorized for issuance upon exercise of rights issued pursuant to the Rights
Agreement described below under the heading 'Stockholder Rights Plan'. An
aggregate of 115,636 shares of Common Stock are reserved for issuance upon
conversion of the Company's $2.65 Cumulative Convertible Preferred Stock and
issuance under the Company's various stock and compensation incentive plans.
The following statements with respect to the capital stock of the Company
are subject to the detailed provisions of the Company's Restated Certificate of
Incorporation (the 'Restated Certificate'), the Company's By-laws, (the
'By-laws') and the Rights Agreement described below under the heading
'Stockholder Rights Plan', as currently in effect. These statements do not
purport to be complete, or to give full effect to the terms of the provisions of
statutory or common law, and are subject to, and are qualified in their entirety
by reference to, the terms of the Restated Certificate, the By-laws and the
Rights Agreement, which are filed as Exhibits to the Registration Statement of
which this Prospectus is a part. The following descriptions of the terms of the
Common Stock and the Preferred Stock set forth certain general terms and
provisions of the Common Stock and the Preferred Stock to which any Prospectus
Supplement may relate (the 'Applicable Prospectus Supplement').
PREFERRED STOCK
Specific terms of any series of the Preferred Stock offered by the
Applicable Prospectus Supplement will be described in the Applicable Prospectus
Supplement. The description set forth below is subject to and qualified in its
entirety by reference to the Restated Certificate and the certificate of
designation (a 'Certificate of Designation') relating to each series of the
Preferred Stock which will be
14
<PAGE>
<PAGE>
filed with the Commission and incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of Preferred Stock.
General. Under the Restated Certificate, the Board of Directors is
authorized, without further shareholder action, to provide for the issuance of
up to 8,300,000 shares of Series Preferred Stock, without par value (the 'Series
Preferred Stock'), in one or more series, and to fix the designations, terms,
rights, restrictions and qualifications of the shares of the series including
any preferences, voting powers, dividend rights and redemption, sinking fund and
conversion rights. Subject to the terms of any other Preferred Stock outstanding
at the time, the Board of Directors may increase or decrease the number of
shares or alter the designation or classify or reclassify any unissued shares of
a particular series of Series Preferred Stock by fixing or altering in certain
respects, from time to time before issuing the shares, any terms, rights,
restrictions and qualifications of such shares.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in the
Applicable Prospectus Supplement. Reference is made to the Applicable Prospectus
Supplement for specific terms, including: (a) the title and liquidation
preference per share of such Preferred Stock and the number of shares offered;
(b) the price at which such Preferred Stock will be issued; (c) the dividend
rate (or method of calculation), the dates on which dividends shall be payable
and the dates from which dividends shall commence to accumulate; (d) any
redemption or sinking fund provisions of such Preferred Stock; (e) any
conversion provisions of such Preferred Stock; (f) the voting rights, if any, of
such Preferred Stock and (g) any additional dividend, liquidation, redemption,
sinking fund and other rights, preferences, privileges, limitations and
restrictions of such Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable. The
rights of the holders of each series of the Preferred Stock will be subordinate
to those of the Company's general creditors.
Dividend Rights. The Preferred Stock will be preferred over the Common
Stock as to payment of dividends. Before any dividends or distributions (other
than dividends or distributions payable in Common Stock) on the Common Stock
shall be declared and set apart for payment or paid, the holders of shares of
each series of Preferred Stock shall be entitled to receive dividends (either in
cash, shares of Common Stock or Preferred Stock, or otherwise) when, as and if
declared by the Board of Directors, at the rate and on the date or dates as set
forth in the Applicable Prospectus Supplement. With respect to each series of
Preferred Stock, the dividends on each share of such series may be cumulative or
noncumulative, as provided in the Applicable Prospectus Supplement. If the Board
of Directors fails to declare a dividend payable on a dividend payment date on
any series of Preferred Stock for which dividends are noncumulative, then the
right to receive a dividend in respect of the dividend period ending on such
dividend payment date will be lost and the Company will have no obligation to
pay any dividend for such period, whether or not dividends on such series are
declared payable on any future dividend payment dates. Dividends on the shares
of each series of Preferred Stock for which dividends are cumulative will accrue
from the date fixed by the Board of Directors. Unless dividends on all
outstanding shares of series of Preferred Stock having cumulative dividend
rights have been fully paid, no dividend may be paid on the Common Stock or any
other class of stock ranking junior to the Preferred Stock.
Liquidation Preferences. Unless otherwise specified in the Applicable
Prospectus Supplement, in the event of any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary, the holders of each series
of the Preferred Stock will be entitled to receive out of the assets of the
Company available for distribution to stockholders, before any distribution of
assets is made to the holders of Common Stock or any other shares of stock of
the Company ranking junior as to such distribution to such series of the
Preferred Stock, the amount (if any) set forth in the Applicable Prospectus
Supplement, together with any unpaid cumulative dividends. If, upon any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
the amounts payable with respect to the Preferred Stock of any series are not
paid in full, the holders of the Preferred Stock of such series and of any other
series of equal preference will share ratably in any such distribution of assets
of the Company in proportion to the full respective preferential amounts to
which they are entitled. After payment to the holders of the Preferred Stock of
each series that has a liquidation preference of the full preferential amounts
of the liquidation distribution to which they are entitled, the holders of each
such
15
<PAGE>
<PAGE>
series of the Preferred Stock will be entitled to no further participation in
any distribution of assets by the Company. A consolidation, merger or sale of
all or substantially all of the assets of the Company would not be considered a
'liquidation' within the meaning of the foregoing provisions.
Redemption. A series of the Preferred Stock may be redeemable, in whole or
from time to time in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in each case upon
terms, at the time and at the redemption prices set forth in the Applicable
Prospectus Supplement. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of Preferred
Stock of the Company.
Conversion and Exchange Rights. The terms, if any, on which shares of
Preferred Stock of any series may be exchanged for or converted into shares of
Common Stock or another series of Preferred Stock will be set forth in the
Applicable Prospectus Supplement. Such terms may include provisions for
conversion, either mandatory, at the option of the holder, or at the option of
the Company, in which case the number of shares of Common Stock, the shares of
another series of Preferred Stock or the amount of any other securities to be
received by the holders of Preferred Stock would be calculated as of a time and
in the manner stated in the Applicable Prospectus Supplement.
Voting. Unless otherwise provided in the Applicable Prospectus Supplement
and except as provided below in the discussion of the $2.65 Cumulative
Convertible Preferred Stock, the holders of any series of Preferred Stock shall
be entitled to one vote for each share of Preferred Stock held by them on all
matters properly presented to shareholders, the holders of Common Stock and the
holders of all series of Preferred Stock voting together as one class.
$2.65 Cumulative Convertible Preferred Stock. The Company has the authority
to issue 14,386 shares of $2.65 Cumulative Convertible Preferred Stock, par
value $1.00 per share (the '$2.65 Preferred Stock'), of which 6,880 such shares
were outstanding on November 30, 1995. Annual cumulative dividends of $2.65 per
share are payable quarterly as and if declared by the Board of Directors. The
$2.65 Preferred Stock is preferred with respect to dividends to both the Series
Preferred Stock and the Common Stock. Each share of $2.65 Preferred Stock is
convertible at any time at the option of the holder thereof into 16.8075 shares
of Common Stock, subject to adjustment in certain circumstances. The $2.65
Preferred Stock is redeemable in whole or in part at the option of the Company,
at $66.00 per share plus any accrued and unpaid dividends to the redemption
date. The holders of $2.65 Preferred Stock are entitled to one vote for each
share held. Except as provided below, the holders of $2.65 Preferred Stock and
the holders of Common Stock (and the holders of any other capital stock of the
Company at the time entitled thereto) vote together as one class. The holders of
the $2.65 Preferred Stock have the right to elect two directors of the Company
if the equivalent of six quarterly dividends payable on the $2.65 Preferred
Stock are in arrears, but whenever all arrears in dividends have been paid and
dividends for the current quarter have been provided for, such holders have no
right to participate in the election of directors. In the case of the voluntary
or involuntary liquidation, dissolution or winding up of the Company, holders of
shares of $2.65 Preferred Stock are entitled to receive the liquidation
preference of $66.00 per share, plus an amount equal to any accrued and unpaid
dividends to the payment date.
So long as any shares of $2.65 Preferred Stock are outstanding the Company
cannot (a) increase the authorized amount of $2.65 Preferred Stock without the
affirmative vote of the holders of at least a majority of the $2.65 Preferred
Stock then outstanding or (b) create any class of stock ranking on a parity with
or ranking prior to the $2.65 Preferred Stock either as to dividends or
distribution of assets in liquidation, or change the preferences, powers, rights
or limitations with respect to the $2.65 Preferred Stock in any material respect
prejudicial to the holders thereof, without the affirmative vote of the holders
of at least two-thirds of the $2.65 Preferred Stock at the time outstanding.
COMMON STOCK
Dividends. After the requirements with respect to preferential dividends
upon the Preferred Stock have been met, the holders of the Common Stock are
entitled to receive such dividends as may be declared from time to time by the
Board of Directors.
16
<PAGE>
<PAGE>
Voting Rights. Each holder of Common Stock shall be entitled to one vote
for each share held and, except as otherwise provided in the Applicable
Prospectus Supplement or in the section of this Prospectus entitled '$2.65
Cumulative Convertible Preferred Stock', the Common Stock and the Preferred
Stock (and any other capital stock of the Company at the time entitled thereto)
shall vote together as one class. Holders of Common Stock are entitled to
receive, upon any liquidation of the Company, all remaining assets available for
distribution to stockholders after satisfaction of the Company's liabilities and
the preferential rights of any Preferred Stock that may then be issued and
outstanding. The outstanding shares of Common Stock are, and the shares of
Common Stock issuable upon conversion of the $2.65 Preferred Stock will be,
fully paid and nonassessable. The holders of Common Stock have no preemptive,
conversion or redemption rights.
The transfer agent and registrar of the Common Stock is First Chicago Trust
Company of New York, Jersey City, New Jersey.
CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BY-LAWS
The following summary of certain provisions of the Company's Restated
Certificate and By-laws does not purport to be complete and is subject to and
qualified in its entirety by reference to the Restated Certificate and the
By-laws which are incorporated by reference as exhibits to the Registration
Statement of which this Prospectus is a part.
Fair Price Provisions. The Company's Restated Certificate requires approval
by holders of at least 80% of the Company's outstanding voting stock for mergers
and certain other corporate transactions ('Business Combinations') that involve
a beneficial owner of (or person that has announced an intention to acquire) 10%
or more of the voting stock of the Company (an 'Interested Stockholder'), unless
(a) the transaction has been approved by a majority of certain directors
('Continuing Directors') who constitute a majority of the entire Board of
Directors of the Company at such time or (b) certain fair price criteria (the
'Fair Price Criteria') and procedural requirements are satisfied. These
provisions of the Restated Certificate may be amended or repealed only by the
affirmative vote of the holders of 80% or more of the stock of the Company
entitled to vote in the election of directors.
A 'Continuing Director' is any member of the Board of Directors who is not
an affiliate or associate of an Interested Stockholder and was or becomes a
director prior to the time that an Interested Stockholder became an Interested
Stockholder, and any successor of a Continuing Director who is unaffiliated with
the Interested Stockholder and is recommended to succeed a Continuing Director
by a majority of the Continuing Directors then on the Board.
The Fair Price Criteria require that in the event of a Business Combination
in which cash or other consideration would be paid to the Company's
stockholders, the aggregate amount of the cash and fair market value of
consideration other than cash to be received per share by the holders of Common
Stock in such Business Combination shall be in the same form and of the same
kind as the consideration paid by the Interested Stockholder to acquire the
initial 10% of such Interested Stockholder's Common Stock shares and shall be at
least equal to the highest per share price paid by such Interested Stockholder
in acquiring any Common Stock of the Company prior to the Business Combination.
The Fair Price Criteria also require that the aggregate amount of cash to
be received per share in such Business Combination by the holders of shares of
any class of Preferred Stock shall be the greater of (a) the highest per share
price paid by the Interested Stockholder in acquiring any shares of such
Preferred Stock or (b) the highest preferential liquidation amount per share to
which the holders of such class of Preferred Stock are entitled in the event of
a voluntary or involuntary liquidation of the Company.
Classification of Directors; Advance Notice of Nomination. The Company's
Restated Certificate and By-laws provide that its Board of Directors shall be
divided into three classes, each class being as nearly equal in number as
possible, and that at each annual meeting of the Company's stockholders, the
successors to the Directors whose terms expire that year shall be elected for a
term of three years. Within the limit of not less than 12 nor more than 18
Directors, the number of Directors is fixed by the Board of Directors. Newly
created directorships and any vacancies on the Board of Directors are filled
17
<PAGE>
<PAGE>
by a majority vote of the remaining Directors then in office, even if less than
a quorum. Directors may be removed by the affirmative vote of the holders of at
least 80% of the outstanding shares of the Company entitled to vote for the
election of directors, but only for cause.
Any stockholder intending to nominate a person for election as Director at
a meeting of stockholders may do so only if written notice of the stockholder's
intent to make such nomination, including certain related information specified
in the By-laws, is given to the Secretary of the Company not later than 90 days
prior to the anniversary date of the immediately proceeding annual meeting or
not later than the tenth day following the date on which notice of the date of
the annual meeting is first given to stockholders, whichever is earlier.
STOCKHOLDER RIGHTS PLAN
On March 2, 1995, the Company entered into a Rights Agreement with First
Chicago Trust Company of New York, as Rights Agent (the 'Rights Agreement'),
which is a stockholder rights plan providing for a dividend of one Preferred
Stock purchase right for each outstanding share of Common Stock of the Company
(the 'Rights'). The dividend was issued to stockholders of record on the date of
the adoption of the Rights Agreement, and holders of shares of Common Stock
issued subsequent to that date are issued Rights with their shares. The Rights
trade automatically with shares of Common Stock and become exercisable only
under certain circumstances as described below. The Rights are designed to
protect the interests of the Company and its stockholders against coercive
takeover tactics. The purpose of the Rights is to encourage potential acquirers
to negotiate with the Company's Board of Directors prior to attempting a
takeover and to provide the Board with leverage in negotiating on behalf of all
stockholders the terms of any proposed takeover. The Rights may have certain
anti-takeover effects. The Rights should not, however, interfere with any merger
or other business combination approved by the Board of Directors.
Until a Right is exercised, the holder of a Right, as such, will have no
rights as a stockholder of the Company including, without limitation, the right
to vote or receive dividends. Upon becoming exercisable, each Right will entitle
the holder thereof to purchase from the Company one one-thousandth (1/1000) of a
share of Series A Participating Cumulative Preferred Stock, without par value,
at a purchase price of $110 per Right, subject to adjustment (the 'Purchase
Price'). In general, the Rights will not be exercisable until the earlier of (a)
such time as the Company learns that a person or group (including any affiliate
or associate of such person or group) has acquired, or has obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common Shares
(such person or group being an 'Acquiring Person'), unless provisions preventing
accidental triggering of the Rights apply and (b) the close of business on such
date, if any, as may be designated by the Board of Directors of the Company
following the commencement of, or first public disclosure of an intent to
commence, a tender or exchange offer for 15% or more of the outstanding Common
Shares (the earlier of such dates being called the 'Distribution Date').
In the event the Company is acquired in a merger or other business
combination by an Acquiring Person or an associate or affiliate of an Acquiring
Person that is a publicly traded corporation or 50% or more of the Company's
assets or assets representing 50% or more of the Company's revenues or cash flow
are sold, leased, exchanged or otherwise transferred (in one or more
transactions) to an Acquiring Person or an associate or affiliate of an
Acquiring Person that is a publicly traded corporation, each Right will entitle
its holder (subject to the next paragraph) to purchase, for the Purchase Price,
that number of common shares of such corporation which at the time of the
transaction would have a market value of twice the Purchase Price. In the event
the Company is acquired in a merger or other business combination by an
Acquiring Person or an associate or affiliate of an Acquiring Person that is not
a publicly traded entity or 50% or more of the Company's assets or assets
representing 50% or more of the Company's revenues or cash flow are sold,
leased, exchanged or otherwise transferred (in one or more transactions) to an
Acquiring Person or an associate or affiliate of an Acquiring Person that is not
a publicly traded entity, each Right will entitle its holder (subject to the
next paragraph) to purchase, for the Purchase Price, at such holder's option,
(a) that number of shares of the surviving corporation in the transaction with
such entity (which surviving corporation could be the Company) which at the time
of the transaction would have a book value of twice the Purchase Price, (b) that
18
<PAGE>
<PAGE>
number of shares of such entity which at the time of the transaction would have
a book value of twice the Purchase Price or (c) if such entity has an affiliate
which has publicly traded common shares, that number of common shares of such
affiliate which at the time of the transaction would have a market value of
twice the Purchase Price.
Any Rights that are at any time beneficially owned by an Acquiring Person
(or any affiliate or associate of an Acquiring Person) will be null and void and
nontransferable and any holder of any such Right (including any purported
transferee or subsequent holder) will be unable to exercise or transfer any such
Right.
The Rights will expire at the close of business on March 2, 2005 (the
'Expiration Date'), unless earlier redeemed. At any time prior to the earlier of
(a) such time as a person or group becomes an Acquiring Person and (b) the
Expiration Date, the Board of Directors may redeem the Right in whole, but not
in part, at a price (in cash or Common Shares or other securities of the Company
deemed by the Board of Directors to be at least equivalent in value) of $.01 per
Right (which amount is subject to adjustment as provided in the Rights
Agreement).
The foregoing description of the Rights does not purport to be complete and
is qualified in its entirety by the description of the Rights contained in the
Rights Agreement.
CERTAIN ANTI-TAKEOVER PROVISIONS OF DELAWARE LAW
The Company is a Delaware corporation and is subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prevents an
'interested stockholder' (defined generally as a person owning 15% or more of
the Company's outstanding voting stock) from engaging in a 'business
combination' (as defined in Section 203) with the Company (or its majority-owned
subsidiaries) for three years following the date such person became an
interested stockholder unless (a) before such person became an interested
stockholder, the Company's Board of Directors approved the transaction in which
the interested stockholder became an interested stockholder or approved the
business combination, (b) upon consummation of the transaction that resulted in
the interested stockholder becoming an interested stockholder, the interested
stockholder owns at least 85% of the Company's voting stock outstanding at the
time the transaction commenced (excluding stock held by directors who are also
officers of the Company and by employee stock plans that do not provide
employees with the rights to determine confidentially whether shares held
subject to the plan will be tendered in a tender or exchange offer) or (c)
following the transaction in which such person became an interested stockholder,
the business combination is approved by the Company's Board of Directors and
approved at a meeting of stockholders by the affirmative vote of the holders of
at least two-thirds of the Company's outstanding voting stock not owned by the
interested stockholder. Under Section 203, the restrictions described above also
do not apply to certain business combinations proposed by an interested
stockholder following the earlier of the announcement or notification of one of
certain extraordinary transactions involving the Company and a Person who had
not been an interested stockholder during the previous three years or who became
an interested stockholder with the approval of a majority of the Company's
directors, if such extraordinary transaction is approved or not opposed by a
majority of the directors who were directors prior to any person becoming an
interested stockholder during the previous three years or were recommended for
election or elected to succeed such directors by a majority of such directors.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in or outside the United States
through underwriters or dealers, directly to one or more purchasers or through
agents. Such underwriters may include J.P. Morgan Securities Inc., Goldman,
Sachs & Co. and Smith Barney Inc. The Prospectus Supplement with respect to the
Offered Securities will set forth the terms of the offering of the Offered
Securities, which may include the name or names of any underwriters, dealers or
agents, the purchase price of the Offered Securities and the net proceeds to the
Company from such sale, any delayed delivery arrangements, any underwriting
discounts or other items constituting underwriters' compensation, any
19
<PAGE>
<PAGE>
discounts or concessions allowed or re-allowed or paid to dealers and any
securities exchanges on which the Offered Securities may be listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more firms
acting as underwriters, as designated. Unless otherwise set forth in the
Prospectus Supplement relating thereto, the obligations of the underwriters or
agents to purchase the Offered Securities will be subject to certain conditions
precedent and the underwriters will be obligated to purchase all the Offered
Securities if any are purchased. Any initial public offering price and any
discounts or concessions allowed or re-allowed or paid to dealers may be changed
from time to time.
If dealers are utilized in the sale of any Offered Securities in respect of
which this Prospectus is delivered, the Company will sell such Offered
Securities to the dealers, as principals. The dealers may then resell such
Offered Securities to the public at varying prices to be determined by such
dealers at the time of resale. The name of the dealers and the terms of the
transaction will be set forth in the Prospectus Supplement relating thereto.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time at a fixed price or prices, which
may be changed, or at varying prices determined at the time of sale. Any agent
involved in the offer or sale of the Offered Securities with respect to which
this Prospectus is delivered will be named and any commissions payable by the
Company to such agent will be set forth in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
Offered Securities may be sold directly by the Company to institutional
investors or others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the applicable Prospectus Supplement.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts, concessions
or commissions. Underwriters, agents and dealers participating in the
distribution of the Offered Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of the Offered Securities by them may be deemed to be underwriting
discounts or commissions under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain types of
institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make with respect thereto. Agents, dealers and underwriters may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
LEGAL MATTERS
The validity of the issuance of the Offered Securities will be passed upon
for the Company by Cravath, Swaine & Moore, New York, New York.
20
<PAGE>
<PAGE>
EXPERTS
The consolidated financial statements and schedule of the Company at
December 31, 1994 and 1993 and for each of the three years in the period ended
December 31, 1994, appearing in the Company's Current Report on Form 8-K dated
as of December 20, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements and schedule are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information for the nine-month periods ended September 30, 1995 and 1994,
incorporated herein by reference, Ernst & Young LLP have reported that they have
applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report, included in the
Company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1995, and incorporated herein by reference, states that they did not audit and
they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their report on such information should
be restricted considering the limited nature of the review procedures applied.
The independent auditors are not subject to the liability provisions of Section
11 of the Securities Act for their report on the unaudited interim financial
information because their report is not a 'report' or a 'part' of the
Registration Statement prepared or certified by the auditors within the meaning
of Sections 7 and 11 of the Securities Act.
The consolidated financial statements and schedules of OSi Specialties
Holding Company and subsidiaries at December 31, 1994 and 1993 and for the year
ended December 31, 1994, and the period from July 1, 1993, through December 31,
1993, incorporated by reference in the Company's Current Report on Form 8-K/A
dated as of December 20, 1995, and incorporated herein by reference have been
audited by Arthur Andersen LLP, independent auditors, as set forth in their
report thereon included therein. Such consolidated financial statements and
schedules are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
The combined financial statements and schedule of the Worldwide Silicone
Business of Union Carbide Corporation (the predecessor company of OSi
Specialties Holding Company) for the six-month period ended June 30, 1993,
incorporated by reference in the Company's Current Report on Form 8-K/A dated as
of December 20, 1995, and incorporated herein by reference have been audited by
KPMG Peat Marwick LLP, independent auditors, as set forth in their report
thereon included therein. Such combined financial statements and schedule are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
21
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
Filing Fee for Registration Statement................................... $100,000
Legal Fees and Expenses................................................. 35,000
Accounting Fees and Expenses............................................ 25,000
Trustee's Fees and Expenses............................................. 10,000
Blue Sky Fees and Expenses.............................................. 10,000
Printing and Engraving Fees............................................. 15,000
Miscellaneous........................................................... 10,000
--------
Total.............................................................. $205,000
--------
--------
</TABLE>
All of the above amounts, other than the filing fee, are estimates only.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware reads
as follows:
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication or liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
II-1
<PAGE>
<PAGE>
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances
because he had met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made
(i) by the board of directors by a majority vote of the directors who are
not parties to such action, suit or proceeding, even though less than a
quorum, or (ii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any By-law, agreement,
vote of stockholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out his status as such, whether or not the corporation
would have the power to indemnify him against such liability under this
section.
(h) For purposes for this section, references, to 'the corporation'
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, references to 'other enterprises'
shall include employee benefit plans; references to 'fines' shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to 'serving at the request of the corporation' shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to any employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner 'not opposed to the best interests of the
corporation' as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction
to hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any By-law, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court of
II-2
<PAGE>
<PAGE>
Chancery may summarily determine a corporation's obligations to advance
expenses (including attorneys' fees).
Article VII of the Registrant's By-laws provides as follows:
Section 6. (a) The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right
of the corporation) by reason of the fact that he is or was an employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. In this
connection, the termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that he is or was an employee or agent
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue, or matter as
to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication or liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that an employee or agent of the corporation has
been successful on the merits or otherwise in defense of any action, suit,
or proceeding referred to in subsections (a) and (b), or in defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of an employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (i) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit, or proceeding, or (ii) if such a quorum is not obtainable, by
independent legal counsel in a written opinion, or (iii) by independent
legal counsel in a written opinion if a majority of a quorum consisting of
directors who were not parties to such action, suit, or proceeding so
directs, or (iv) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an employee or
agent in defending any civil, criminal, administrative, or investigative
action, suit or proceeding shall be paid by the corporation in advance of
the final disposition of such action, suit, or proceeding upon receipt of
an undertaking by or on behalf of an employee or agent to repay such amount
if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
II-3
<PAGE>
<PAGE>
(f) The indemnification and advancement of expenses provided by or
granted pursuant to the provisions of this section shall not be deemed
exclusive of any other rights to which one seeking indemnification or
advancement of expenses may be entitled under any By-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
(g) The corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was an employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this section.
(h) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an
employee or agent and shall inure to the benefit of the heirs, executors,
and administrators of such person.
Article XI of the Company's Restated Certificate provides as follows:
(a) The Company shall indemnify and hold harmless, to the fullest
extent now or hereafter permitted by applicable law as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide prior
to such amendment), each director or officer (including each former
director or officer) of the Company who was or is made a party to or a
witness in or is threatened to be made a party to or a witness in, or is
otherwise involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter referred to as a 'Proceeding'), by reason of the fact that
such person is or was a director, officer, employee, or agent of the
Company or is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans (hereinafter referred to as a 'Representative'),
whether the basis of such proceeding is alleged action or failure to take
action in an official capacity as a Representative or in any other capacity
while serving as a Representative, against any and all expenses (including
attorneys' fees and disbursements), liabilities, (including judgments,
fines, excise taxes and penalties imposed under or in connection with
obligations under the Employee Retirement Income Securities Act of 1974, as
amended), amounts paid in settlement, and amounts expended in seeking
indemnification granted to such person under applicable law, the By-laws or
any agreement with the Company, actually and reasonably incurred by such
persons in connection with such Proceeding.
(b) The Company shall pay expenses (including attorneys' fees and
disbursements) incurred by a director or officer (including each former
director or officer) of the Company in connection with the investigation,
defense, settlement or appeal of any Proceeding to which such person is a
party to or a witness in or is threatened to be a party to or a witness in,
or is otherwise involved in, regarding such person's service as a
Representative in advance of the final disposition of such Proceeding. The
expenses incurred by such director or officer in his capacity as a
Representative of the Company shall be paid by the Company in advance of
the final disposition of such Proceeding only upon receipt by the Company
of an undertaking by or on behalf of such person to repay all amounts
advanced if it shall be determined ultimately that such person is not
entitled to be indemnified under this Article XI or otherwise.
(c) The rights of indemnification and advancement of expenses provided
by this Article XI shall not be deemed exclusive of any other rights to
which any person seeking indemnification or advancement of expenses may
have or hereafter be entitled under any statute, provision of the Restated
Certificate of Incorporation or By-laws of the Company, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office or position, and shall continue as to a person who has
ceased to be a Representative of the Company and shall inure to the benefit
of the heirs,
II-4
<PAGE>
<PAGE>
executors and administrators of such person. The rights conferred in this
Article XI shall be contract rights.
(d) If any claim under this Article XI is not paid in full by the
Company within 30 days after a written claim has been received by the
Company, the claimant may at any time thereafter bring suit against the
Company to recover the unpaid amount of the claim and, if such suit is not
frivolous or brought in bad faith, the claimant shall be entitled to be
also paid the expense of prosecuting such claims. It shall be a defense to
any such action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to
the Company) that the claimant has not met the standards of conduct that
make it permissible under applicable law for the Company to indemnify the
claimant for the amount claimed, but the burden of providing such defense
shall be on the Company. Neither the failure of the Company (including the
Board, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification
of the claimant is proper in the circumstances because the claimant has met
the applicable standard of conduct set forth in applicable law, nor an
actual determination by the Company (including the Board, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct.
(e) The Company may purchase and maintain insurance on behalf of any
Representative, employee or agent of the Company against any liability
asserted against or incurred by such person in any capacity, whether or not
the Company would have the power to indemnify such person against such
liability under the provisions of this Article XI.
(f) The Board, without approval of the stockholders, shall have the
power to borrow money on behalf of the Company, including the power to
pledge the assets of the Company, from time to time to discharge the
Company's obligations with respect to indemnification, the advancement and
reimbursement of expenses, and the purchase and maintenance of insurance
referred to in this Article XI.
(g) For purposes of this Article, references to the 'Company' shall
include, in addition to the resulting corporations, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its Representatives so that
any person who is or was a Representative of such constituent corporation
shall stand in the same position under this Article XI with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(h) The Board is authorized to enter into a contract with any
Representative, employee or agent of the Company providing for
indemnification rights equivalent to or, if the Board so determines,
greater than, those provided for in this Article XI.
(i) Any amendment, repeal or modification of any provision of this
Article XI by the stockholders or the directors of the Company shall not
adversely affect any right of protection of a Representative of the Company
under this Article XI existing at the time of such amendment, repeal or
modification.
(j) The Company may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Company to the fullest extent
of the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Company.
(k) A director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary
duty as a director except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for a stock repurchase which is
illegal under Section 174 of the General Corporation Law of the State of
Delaware or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law
hereafter is amended to authorize the
II-5
<PAGE>
<PAGE>
further elimination or limitation of the liability of directors, then the
liability of a director of the Company, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extent
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this paragraph by the stockholders of the Company shall be
prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Company existing at the time of
such repeal or modification.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<C> <S>
1.1 -- Form of Underwriting Agreement for the Senior Debt Securities and the Subordinated Debt Securities.
1.2 -- Form of Underwriting Agreement for the Common Stock.
1.3 -- Form of Underwriting Agreement for the Preferred Stock.
3.1 -- Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3(i) to the
Company's Form 10-Q for the Quarter ended March 31, 1994).
3.2 -- By-laws of the Company (incorporated by reference to Exhibit 3(ii) to the Company's Form 10-Q for the
Quarter ended March 31, 1994).
4.1(a) -- Form of Indenture relating to Senior Debt Securities (incorporated by reference to Exhibit 4(a) to
Registration Statement No. 33-58066, filed with the Commission on February 10, 1993).
4.1(b)* -- Form of Indenture relating to Subordinated Debt Securities.
4.2(a) -- Form of Senior Debt Securities (included in Exhibit 4.1(a)).
4.2(b)* -- Form of Subordinated Debt Securities (included in Exhibit 4.1(b)).
4.5 -- Rights Agreement dated as of March 2, 1995, between the Company and First Chicago Trust Company of New
York, as Rights Agent (incorporated by reference to Exhibit 1 to the Company's Report on Form 8-K/A
filed with the Commission on March 3, 1995).
5* -- Opinion of Cravath, Swaine & Moore.
12* -- Statement re computation of ratios.
15* -- Letter re unaudited interim financial information.
23.1* -- Consent of Cravath, Swaine & Moore (included in Exhibit 5).
23.2* -- Consent of Ernst & Young LLP.
23.3* -- Consent of Arthur Andersen LLP.
23.4* -- Consent of KPMG Peat Marwick LLP.
24* -- Powers of Attorney (included on Page II-8 as a part of the signature pages to the original
Registration Statement).
25* -- Form T-1 Statement of Eligibility and Qualification of the Senior Trustee.
</TABLE>
- ------------
* Previously filed
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(A) To include any prospectus required by Section 10(a)(3) of
the Securities Act unless the information required to be included in
such post-effective amendment is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement;
(B) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement unless the information required
to be included in such post-effective amendment is contained in
periodic reports filed by the Registrant pursuant
II-6
<PAGE>
<PAGE>
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the 'Calculation of
Registration Fee' table in the effective registration statement; and
(C) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(ii) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(iii) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy, as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the Trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of such Act.
II-7
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Greenwich, State of Connecticut, on January 25,
1996.
WITCO CORPORATION,
By: /s/ WILLIAM S. TOLLER
.....................................
WILLIAM S. TOLLER
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act, this Amendment to the
Registration Statement has been signed below by the following persons in the
capacities indicated on January 25, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ ---------------------------------------------------------------------
<S> <C>
PRINCIPAL EXECUTIVE OFFICERS:
* Chairman of the Board, Chief Executive Officer and Director
.........................................
(WILLIAM R. TOLLER)
* Vice Chairman, Chief Operating Officer and Director
.........................................
(WILLIAM E. MAHONEY)
PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER:
* Executive Vice President and Chief Financial Officer
.........................................
(MICHAEL D. FULLWOOD)
DIRECTORS:
* Director
.........................................
(WILLIAM J. ASHE)
* Director
.........................................
(SIMEON BRINBERG)
* Director
.........................................
(WILLIAM G. BURNS)
* Director
.........................................
(WILLIAM R. GRANT)
* Director
.........................................
(RICHARD M. HAYDEN)
* Director
.........................................
(HARRY G. HOHN)
</TABLE>
II-8
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ ---------------------------------------------------------------------
<C> <S>
* Director
.........................................
(L. JOHN POLITE, JR.)
* Director
.........................................
(DAN J. SAMUEL)
* Director
.........................................
(BRUCE F. WESSON)
* Director
.........................................
(WILLIAM WISHNICK)
*By: /s/ DUSTAN E. MCCOY
.........................................
(DUSTAN E. MCCOY)
ATTORNEY-IN-FACT
</TABLE>
II-9
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER EXHIBIT NUMBERED PAGE
- --------- --------------------------------------------------------------------------------------- -------------
<C> <S> <C>
1.1 -- Form of Underwriting Agreement for the Senior Debt Securities and the Subordinated
Debt Securities......................................................................
1.2 -- Form of Underwriting Agreement for the Common Stock.................................
1.3 -- Form of Underwriting Agreement for the Preferred Stock..............................
3.1 -- Restated Certificate of Incorporation of the Company (incorporated by reference to
Exhibit 3(i) to the Company's Form 10-Q for the Quarter ended March 31, 1994)........
3.2 -- By-laws of the Company (incorporated by reference to Exhibit 3(ii) to the Company's
Form 10-Q for the Quarter ended March 31, 1994)......................................
4.1(a) -- Form of Indenture relating to Senior Debt Securities (incorporated by reference to
Exhibit 4(a) to Registration Statement No. 33-58066, filed with the Commission on
February 10, 1993)...................................................................
4.1(b)* -- Form of Indenture relating to Subordinated Debt Securities..........................
4.2(a) -- Form of Senior Debt Securities (included in Exhibit 4.1(a)).........................
4.2(b)* -- Form of Subordinated Debt Securities (included in Exhibit 4.1(b))...................
4.5 -- Rights Agreement dated as of March 2, 1995, between the Company and First Chicago
Trust Company of New York, as Rights Agent (incorporated by reference to Exhibit 1 to
the Company's Report on Form 8-K/A filed with the Commission of March 3, 1995).......
5* -- Opinion of Cravath, Swaine & Moore..................................................
12* -- Statement re computation of ratios..................................................
15* -- Letter re unaudited interim financial information...................................
23.1* -- Consent of Cravath, Swaine & Moore (included in Exhibit 5)..........................
23.2* -- Consent of Ernst & Young LLP........................................................
23.3* -- Consent of Arthur Andersen LLP......................................................
23.4* -- Consent of KPMG Peat Marwick LLP....................................................
24* -- Powers of Attorney (included on page II-8 as a part of the signature pages to the
original Registration Statement).....................................................
25* -- Form T-1 Statement of Eligibility and Qualification of the Senior Trustee...........
</TABLE>
- ------------
* Previously filed
<PAGE>
<PAGE>
EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT FOR SENIOR
DEBT SECURITIES AND SUBORDINATED DEBT SECURITIES
Witco Corporation
Debt Securities
Underwriting Agreement
New York, New York
To the Representatives named in Schedule I hereto of the Underwriters named in
Schedule II hereto
Dear Sirs:
Witco Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule I
hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of , 19 , between the Company and , as trustee (the "Trustee"). If the
firm or firms listed in Schedule II hereto include only the firm or firms listed
in Schedule I hereto, then the terms "Underwriters" and "Representatives", as
used herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Under-
writer as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
<PAGE>
<PAGE>
2
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic Prospectus may
not include all the information with respect to the Securities
and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act
and the rules thereunder to be included therein as of the
Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement
to the form of prospectus included in such registration
statement relating to the Securities and the offering thereof.
As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use
of Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth
in Schedule I
<PAGE>
<PAGE>
3
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will
next file with the Commission either (A) a final prospectus
supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (B) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (A), the Company has
included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to
be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 3 hereof), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements
of the Act, the Securities Exchange Act of 1934 (the "Exchange Act")
and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material
<PAGE>
<PAGE>
4
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the requirements of the Trust
Indenture Act and the rules thereunder; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b)
<PAGE>
<PAGE>
5
after the Execution Time, together with the Basic Prospectus or, if, in
the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b)
is required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (a)
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and
the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. A "Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A Information)
with respect to the securities so offered must be included in such
registration
<PAGE>
<PAGE>
6
statement at the effective date thereof. A "Delayed Offering" shall
mean an offering of securities pursuant to Rule 415 which does not
commence promptly after the effective date of a registration statement,
with the result that only information required pursuant to Rule 415
need be included in such registration statement at the effective date
thereof with respect to the securities so offered. Whether the offering
of the Securities is a Non-Delayed Offering or a Delayed Offering shall
be set forth in Schedule I hereto.
(d) The financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Final Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement and the Final Prospectus present fairly the information
required to be stated therein; and the pro forma financial information,
and the related notes thereto, included or incorporated by reference in
the Registration Statement and the Final Prospectus has been prepared
in accordance with the applicable requirements of the Act and the
Exchange Act, as applicable.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, if Schedule
I hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as the Company may
authorize or approve. The Underwriters will endeavor to make such arrangements
and, as compensation therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the percentage set forth
in Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except
<PAGE>
<PAGE>
7
as the Company may otherwise agree, each such Delayed Delivery Contract must be
for not less than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Securities to
be purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of Securities set forth
opposite the name of such Underwriter bears to the aggregate principal amount
set forth in Schedule II hereto, except to the extent that you determine that
such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto less the aggregate principal amount of
Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next day funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
<PAGE>
<PAGE>
8
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
<PAGE>
<PAGE>
9
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) During the period beginning from the
Execution Date and continuing to and including the
earlier of (i) the termination of trading restrictions
<PAGE>
<PAGE>
10
for the Securities, as notified to the Company by the Representatives
and (ii) the Closing Date, the Company will not, without the consent of
the Representatives, offer, sell or contract to sell, or otherwise
dispose of any debt securities substantially similar to the Securities.
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and
the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba after the date the Registration Statement becomes or has become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(h) The Company will pay all costs and expenses incident to
the performance of it obligations hereunder, including, without
limiting the generality of the foregoing, all costs and expenses (i)
incident to the preparation, issuance, execution, authentication and
delivery of the Securities, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Preliminary Final Prospectus and the Final Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Representatives may designate
(including fees of counsel for the Representatives and their
disbursements), (iv) in connection with the listing of the Securities
on any stock exchange, (v) related to any filing with the National
Association of Securities Dealers, Inc., and (vi) in connection with
the printing (including word processing and duplication costs) and
delivery of any documents in connection with the offering, purchase,
sale and delivery of the Securities and the furnishing to the
Representatives, the Underwriters and dealers of copies of the
Registration Statement, the Preliminary Final Prospectus and the Final
Prospectus, including mailing and shipping, as herein provided. It is
understood, however, that except as provided in this Section,
Section 6 and Section 7 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their own counsel,
any transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 Noon New York City time on the business day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to
<PAGE>
<PAGE>
11
Rule 424(b), the Final Prospectus, and any such supplement, shall have
been filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion or letter of Cravath, Swaine & Moore, counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the Securities conform
to the description thereof contained in the Final Prospectus;
and, if the Securities are to be listed on any securities
exchange, authorization therefor has been given, subject to
official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect
to the Securities with such securities exchange and such
counsel has no reason to believe that the Securities will not
be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(iii) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect), and conforms in all material respects to
the descriptions thereof in the Final Prospectus; and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and
<PAGE>
<PAGE>
12
paid for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in the case of
any Contract Securities, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of
the Indenture, and conform in all material respects to the
descriptions thereof in the Final Prospectus;
(iv) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder; and such counsel has no
reason to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company; and
(vi) to the best knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation
of the transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained under
<PAGE>
<PAGE>
13
the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such
other approvals (specified in such opinion) as have been
obtained;
In rendering such opinion, such counsel may rely (x) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the United States, or the General Corporation Law
of the State of Delaware, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters and (y) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives
the opinion of Dustan E. McCoy, Vice President and General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and its material subsidiaries
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and
is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction
wherein the failure to so qualify would have a material
adverse effect upon the Company and its Subsidiaries
considered as a whole;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of these Subsidiaries are owned by the
Company either directly or through
<PAGE>
<PAGE>
14
wholly owned Subsidiaries free and clear of any perfected
security interest and to the best knowledge of such counsel,
any other security interests, claims, liens or encumbrances;
(iii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
(iv) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach or violation of, or constitute a default under any law
or the charter or by-laws of the Company or the terms of any
indenture or other agreement or instrument known to such
counsel and to which the Company or any of its Subsidiaries is
a party or bound or any judgment, order or decree known to
such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its Subsidiaries; and
(v) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
(d) The Representatives shall have received from
, counsel for the Underwriters,
<PAGE>
<PAGE>
15
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Indenture, any Delayed
Delivery Contracts, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the financial condition, earnings, business or properties
of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) At the Closing Date, Ernst & Young LLP shall
have furnished to the Representatives a letter or
<PAGE>
<PAGE>
16
letters (which may refer to letters previously delivered to one or more
of the Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma financial
statements included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited interim financial
information as indicated in their reports incorporated in the
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
executive, finance and audit committees of the Company and the
Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements in or incorporated in the Final
Prospectus, nothing came to their attention which caused them
to believe that:
(A) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not
<PAGE>
<PAGE>
17
comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(B) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in the
consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible
securities, in each case which were outstanding on
the date of the latest balance sheet included or
incorporated by reference in the Registration
Statement and the Final Prospectus) or any increase
in the consolidated long-term debt of the Company and
its subsidiaries or decreases in the shareholders'
equity of the Company or decreases in net assets of
the Company and its subsidiaries as compared with the
amounts shown on the most recent consolidated balance
sheet included or incorporated in the Registration
Statement and the Final Prospectus, or for the period
from the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Final Prospectus to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year in net
revenues or operating profit or net sales or net
income per share
<PAGE>
<PAGE>
18
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(C) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Item 6 of the Company's Annual Report on Form
10-K, incorporated in the Registration Statement and the
Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's
Quarterly Reports on Form 10-Q, incorporated in the
Registration Statement and the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma financial statements included or incorporated in the
Registration Statement and the Final Prospectus, carrying out
certain specified procedures, inquiries of certain officials
of
<PAGE>
<PAGE>
19
the Company and the acquired company who have responsibility
for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in
form and substance satisfactory to the Representatives, to the effect
set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for
<PAGE>
<PAGE>
20
purpose of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the offices of Cravath, Swaine & Moore, counsel for the Company,
at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not con-
summated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all reasonable out-
of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of
the Securities.
<PAGE>
<PAGE>
21
7. Indemnification and Contribution. (a) The
Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the
registration statement for the registration of the
Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse
each Underwriter, as incurred, for any legal or other
expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion therein; and provided further, that the Company
shall not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any
Preliminary Final Prospectus to the extent that any such
loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold Securities to a
person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of
such sale, a copy of the Final Prospectus (excluding
documents incorporated by reference) or of the Final
Prospectus as then amended or supplemented (excluding
documents incorporated by reference) in any case where such
delivery is required by the Act if the Company has
previously furnished copies thereof to such Underwriter and
the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material
fact contained in the Preliminary Final Prospectus which was
corrected in the Final Prospectus (excluding documents
incorporated by reference) or in the Final Prospectus as
then amended or supplemented (excluding documents
incorporated by reference).
<PAGE>
<PAGE>
22
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made therein in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the
<PAGE>
<PAGE>
23
defense thereof other than reasonable costs of investigation.
(d) In the event any indemnifying party to this Agreement
determines to settle, compromise or consent to the entry of any judgment in or
otherwise seek to terminate any pending or threatened action, claim, suit,
investigation or proceeding in respect of which any indemnified party under
subsection (a) or (b) above is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, at the request of such
indemnified party, the indemnifying party will reconfirm its obligations under
this Section 7 at such time.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(e) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this
<PAGE>
<PAGE>
24
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), 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 obligations of the Underwriters of Securities in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(f) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
8. Default by an Underwriter. (a) If any Underwriter shall
default in its obligation to purchase any of the Securities which it has agreed
to purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Securities, the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the
<PAGE>
<PAGE>
25
Representatives notify the Company that they have so arranged for the purchase
of such Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the Company
shall have the right to postpone the Closing Date for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Final Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Final Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect if such person had originally been a party
to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Securities, then
the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Securities
which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangement have not been
made; but nothing herein shall relive a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Securities, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon be terminated, without liability on the part of any
non-defaulting Underwriter or the Company, except for the
<PAGE>
<PAGE>
26
indemnity and contribution agreements in this Section 7; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (a) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (b) a banking moratorium
shall have been declared either by Federal or New York State authorities or (c)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and the several Underwriters, as set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for
the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 7 hereof, the
representations and warranties in Section 1 hereof and any representation or
warranty as to the accuracy of the Registration Statement or the Final
Prospectus contained in any certificate furnished by the Company pursuant to
Section 5 hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the
<PAGE>
<PAGE>
27
extent of any interest therein of a controlling person or partner of any
Underwriter who is a director, officer or controlling person of the Company when
the Registration Statement has become effective, except in each case to the
extent that an interest of such character shall have been determined by a court
of appropriate jurisdiction as not against public policy as expressed in the
Act. Unless in the opinion of counsel for the Company the matter has been
settled by controlling precedent, the Company will, if a claim for such
indemnification is asserted, submit to a court of appropriate jurisdiction the
question whether such interest is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at One American Lane, Greenwich, Connecticut
06831, attention of the General Counsel.
12. Successors. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 7 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
13. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York.
<PAGE>
<PAGE>
28
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
WITCO CORPORATION,
by
-----------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
by
---------------------------
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-65203
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 5(e) at the Execution Time:
<PAGE>
<PAGE>
SCHEDULE II
Underwriters Principal Amount
of Securities to
be Purchased
-----------------
$
-----------------
Total......................................................... $
=================
<PAGE>
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from Witco
Corporation (the "Company"), and the Company agrees to sell to the undersigned,
on , 19 , (the "Delivery Date"), $ principal amount of the Company's
(the "Securities") offered by
the Company's Prospectus dated , 19 , and related Prospectus Supplement dated ,
19 , receipt of a copy of which is hereby acknowledged, at a purchase price of
% of the principal amount thereof, plus [accrued interest] [amortization of
original issue discount], if any, thereon from , 19 , to the date of payment and
delivery, and on the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 AM, New York City time, on the Delivery Date to
or upon the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company and
the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery
of and make payment for Securities on the Delivery Date, and
<PAGE>
<PAGE>
2
the obligation of the Company to sell and deliver Securities on the Delivery
Date, shall be subject to the conditions (and neither party shall incur any
liability by reason of the failure thereof) that (a) the purchase of Securities
to be made by the undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be prohibited
under the laws of the jurisdiction to which the undersigned is subject, and (b)
the Company, on or before the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities as is
to be sold to them pursuant to the Underwriting Agreement referred to in the
Prospectus and Prospectus Supplement mentioned above. Promptly after completion
of such sale to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinion of counsel for the Company delivered to the Underwriters
in connection therewith. The obligation of the undersigned to take delivery of
and make payment for the Securities, and the obligation of the Company to cause
the Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date
<PAGE>
<PAGE>
3
first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
----------------------------
(Name of Purchaser)
by
--------------------------
Name:
Title:
Accepted:
WITCO CORPORATION,
by
------------------------
Name:
Title:
<PAGE>
<PAGE>
EXHIBIT 1.2
FORM OF UNDERWRITING AGREEMENT FOR
COMMON STOCK
Witco Corporation
Common Stock
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Witco Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the number of shares of Common Stock, par value $5.00 per
share, of the Company ("Common Stock"), set forth in Schedule I hereto (the
"Securities"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Under-
writer as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
<PAGE>
<PAGE>
2
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic Prospectus may
not include all the information with respect to the Securities
and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act
and the rules thereunder to be included therein as of the
Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement
to the form of prospectus included in such registration
statement relating to the Securities and the offering thereof.
As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use
of Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth
in Schedule I
<PAGE>
<PAGE>
3
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will
next file with the Commission either (A) a final prospectus
supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (B) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (A), the Company has
included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to
be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 3 hereof), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934 (the "Exchange Act")
and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
<PAGE>
<PAGE>
4
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall
<PAGE>
<PAGE>
5
mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective) and, in the event
any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules
or regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that
only information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the
<PAGE>
<PAGE>
6
securities so offered. Whether the offering of the
Securities is a Non-Delayed Offering or a Delayed
Offering shall be set forth in Schedule I hereto.
(d) The financial statements, and the related
notes thereto, included or incorporated by reference in the
Registration Statement and the Final Prospectus present
fairly the consolidated financial position of the Company
and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement and
the Final Prospectus present fairly the information required
to be stated therein; and the pro forma financial
information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and
the Final Prospectus has been prepared in accordance with
the applicable requirements of the Act and the Exchange Act,
as applicable.
(e) Neither the Company nor any of its significant
subsidiaries (as defined in Regulation S-X of the Commission)
("Significant Subsidiaries") has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Final Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Final Prospectus, there has not been any change in the capital stock
(other than pursuant to employee stock option plans existing on, or on
the conversion of convertible securities outstanding on, the date of
this Agreement), or any increase in the long-term debt of the Company
or any of its subsidiaries.
(f) The Company and its Significant Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Final Prospectus or such as do not in the
aggregate materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries, taken as a
whole; and any real property and buildings held under lease by the
Company and its Significant Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries,
taken as a whole.
(g) Except as disclosed in the Registration Statement and
Final Prospectus, neither the Company nor any of its subsidiaries (i)
has received notice or has actual knowledge of any claim, demand,
obligation, cause of action, accusation, allegation, order, violation,
damage, injury, judgment, penalty or fine which the Company has
reasonable cause to believe would individually or in the aggregate have
a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries resulting from (A) the violation or alleged violation of
any laws relating to air pollution, water pollution, noise control
and/or handling discharge, disposal or recovery of on-site or off-site
hazardous substances or materials, (B) any noncompliance with or
violation of the requirements of any environmental law, (C) the release
or threatened release of any toxic or hazardous waste, substance or
constituent or (D) any other Environmental Matter (as hereinafter
defined), or (ii) has reasonable cause to believe that the Company or
any of its subsidiaries is or will be liable in connection with the
release or threatened release of any toxic or hazardous waste,
substance or constituent, which liability would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, or (iii) has received notice or has actual
knowledge of any governmental investigation seeking remedial action in
connection with a release or threatened release of any toxic or
hazardous waste, substance or constituent for which the Company or any
of its subsidiaries may be liable and which could reasonably be
expected to have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries. "Environmental Matter" means (w) the
release of any amount of toxic or hazardous waste or substances,
pollutant or contaminant into the environment, (x) the management,
including the generation, handling, treatment, storage, transport,
discharge or disposal or recovery, whether on-site or off-site, of any
solid wastes, toxic or hazardous wastes, hazardous substances,
pollutants or contaminants, (y) the past and present use of surface
waters or groundwater and (z) the construction or maintenance of any
dams or levees.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in Schedule I hereto, the amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next day funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
<PAGE>
<PAGE>
7
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any
<PAGE>
<PAGE>
8
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities.
(f) During the period beginning from the Execution Date and
continuing to and including the earlier of (i) the termination of
trading restrictions for the Securities, as notified to the Company by
the Representatives and (ii) the Closing Date, the Company will not,
without the consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of any other shares of Common Stock or any
securities convertible into, or exchangeable for, shares of Common
<PAGE>
<PAGE>
9
Stock; provided, however, that the Company may issue and sell Common
Stock pursuant to any employee stock option plan, stock ownership plan
or dividend reinvestment plan of the Company in effect at the Execution
Time and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time.
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and
the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba after the date the Registration Statement becomes or has become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(h) The Company will pay all costs and expenses incident to
the performance of it obligations hereunder, including, without
limiting the generality of the foregoing, all costs and expenses (i)
incident to the preparation, issuance, execution, authentication and
delivery of the Securities, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Preliminary Final Prospectus and the Final Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Representatives may designate
(including fees of counsel for the Representatives and their
disbursements), (iv) in connection with the listing of the Securities
on any stock exchange, (v) related to any filing with the National
Association of Securities Dealers, Inc., and (vi) in connection with
the printing (including word processing and duplication costs) and
delivery of any documents in connection with the offering, purchase,
sale and delivery of the Securities and the furnishing to the
Representatives, the Underwriters and dealers of copies of the
Registration Statement, the Preliminary Final Prospectus and the Final
Prospectus, including mailing and shipping, as herein provided. It is
understood, however, that except as provided in this Section,
Section 6 and Section 7 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their own counsel,
any transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 Noon New York City time on the business day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date;
if filing of the Final Prospectus,
<PAGE>
<PAGE>
10
or any supplement thereto, is required pursuant to Rule 424(b), the
Final Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion or letter of Cravath, Swaine & Moore, counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the capital stock of the
Company conforms to the description thereof contained in the
Final Prospectus; the Securities have been duly and validly
authorized, conform in all material respects to the
descriptions thereof in the Final Prospectus, and when issued
and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and nonassessable; the
Securities are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange;
the certificates for the Securities are in valid and
sufficient form; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities;
(iii) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
<PAGE>
<PAGE>
11
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements
of the Act and the Exchange Act and the respective rules
thereunder; and such counsel has no reason to believe that at
the Effective Date the Registration Statement contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Final
Prospectus includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company; and
(v) to the best knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained;
In rendering such opinion, such counsel may rely (x) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the United States, or the General Corporation Law
of the State of Delaware, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters and (y) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
<PAGE>
<PAGE>
12
(c) The Company shall have furnished to the Representatives
the opinion of Dustan E. McCoy, Vice President and General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and its material subsidiaries
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and
is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction
wherein the failure to so qualify would have a material
adverse effect upon the Company and its Subsidiaries
considered as a whole;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of these Subsidiaries are owned by the
Company either directly or through wholly owned Subsidiaries
free and clear of any perfected security interest and to the
best knowledge of such counsel, any other security interests,
claims, liens or encumbrances;
(iii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or
<PAGE>
<PAGE>
13
agreements relating to the Company fairly
summarize such matters;
(iv) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its Subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its Subsidiaries; and
(v) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
(d) The Representatives shall have received from
, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in
all material respects on and as of the Closing
<PAGE>
<PAGE>
14
Date with the same effect as if made on the Closing Date and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the financial condition, earnings, business or properties
of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) At the Closing Date, Ernst & Young LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma financial
statements included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with
standards established by
<PAGE>
<PAGE>
15
the American Institute of Certified Public Accountants of the
unaudited interim financial information as indicated in their
reports incorporated in the Registration Statement and the
Final Prospectus; carrying out certain specified procedures
(but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive, finance and audit
committees of the Company and the Subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(A) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(B) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in the
consolidated capital stock
<PAGE>
<PAGE>
16
(other than issuances of capital stock upon exercise
of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions
of convertible securities, in each case which were
outstanding on the date of the latest balance sheet
included or incorporated by reference in the
Registration Statement and the Final Prospectus) or
any increase in the consolidated long-term debt of
the Company and its subsidiaries or decreases in the
shareholders' equity of the Company or decreases in
net assets of the Company and its subsidiaries as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Final
Prospectus, or for the period from the date of the
most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year in net revenues or
operating profit or net sales or net income per share
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(C) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting,
<PAGE>
<PAGE>
17
financial or statistical nature (which is limited to
accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or incorporated
in Item 6 of the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus,
and the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma financial statements included or incorporated in the
Registration Statement and the Final Prospectus, carrying out
certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have
responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in
form and
<PAGE>
<PAGE>
18
substance satisfactory to the Representatives, to the
effect set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
<PAGE>
<PAGE>
19
The documents required to be delivered by this Section 5 shall
be delivered at the offices of Cravath, Swaine & Moore, counsel for the Company,
at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not con-
summated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all reasonable out-
of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of
the Securities.
7. Indemnification and Contribution. (a) The
Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the
registration statement for the registration of the
Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse
each Underwriter, as incurred, for any legal or other
expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion therein; and provided further, that the Company
<PAGE>
<PAGE>
20
shall not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Final Prospectus to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Securities to a person as to whom it shall
be established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Final Prospectus (excluding documents
incorporated by reference) or of the Final Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case where
such delivery is required by the Act if the Company has previously furnished
copies thereof to such Underwriter and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Final Prospectus which was corrected in the Final
Prospectus (excluding documents incorporated by reference) or in the Final
Prospectus as then amended or supplemented (excluding documents incorporated by
reference).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made therein in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
<PAGE>
<PAGE>
21
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) In the event any indemnifying party to this Agreement
determines to settle, compromise or consent to the entry of any judgment in or
otherwise seek to terminate any pending or threatened action, claim, suit,
investigation or proceeding in respect of which any indemnified party under
subsection (a) or (b) above is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, at the request of such
indemnified party, the indemnifying party will reconfirm its obligations under
this Section 7 at such time.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable
<PAGE>
<PAGE>
22
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
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 obligations of the Underwriters
of Securities in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(f) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the
<PAGE>
<PAGE>
23
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of the
Act.
8. Default by an Underwriter. (a) If any Underwriter shall
default in its obligation to purchase any of the Securities which it has agreed
to purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Securities, the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Securities, the Representatives or the Company shall have the right to postpone
the Closing Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Final Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Final Prospectus which in the opinion of the Representatives
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect if such
person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of shares of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the shares of the Securities,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of shares of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to
<PAGE>
<PAGE>
24
purchase its pro rata share (based on the number of shares of Securities which
such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangement have not been
made; but nothing herein shall relive a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of shares of Securities which remains unpurchased exceeds
one-eleventh of the aggregate number of all the shares of the Securities, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon be terminated, without liability on the part of any
non-defaulting Underwriter or the Company, except for the indemnity and
contribution agreements in this Section 7; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (a) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (b) a banking moratorium
shall have been declared either by Federal or New York State authorities or (c)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
10. Representations and Indemnities to Survive.
The respective indemnities, agreements, representations,
warranties and other statements of the Company and the
several Underwriters, as set forth in this Agreement or made
<PAGE>
<PAGE>
25
by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 7 hereof, the
representations and warranties in Section 1 hereof and any representation or
warranty as to the accuracy of the Registration Statement or the Final
Prospectus contained in any certificate furnished by the Company pursuant to
Section 5 hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a controlling person
or partner of any Underwriter who is a director, officer or controlling person
of the Company when the Registration Statement has become effective, except in
each case to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public policy
as expressed in the Act. Unless in the opinion of counsel for the Company the
matter has been settled by controlling precedent, the Company will, if a claim
for such indemnification is asserted, submit to a court of appropriate
jurisdiction the question whether such interest is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at One American Lane, Greenwich, Connecticut
06831, attention of the General Counsel.
12. Successors. This Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters,
the Company and, to the extent provided in Section 7 and
Section 10 hereof, the officers and directors of the Company
<PAGE>
<PAGE>
26
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
13. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
WITCO CORPORATION,
by
---------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
by
---------------------------
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
<PAGE>
27
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-65203
Representative(s):
Amount and Purchase Price of Securities:
Number of shares:
Purchase price per share:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 5(e) at the Execution Time:
<PAGE>
<PAGE>
SCHEDULE II
Underwriters
Number of Shares
to be purchased
-----------------
Total......................................................
=================
<PAGE>
<PAGE>
EXHIBIT 1.3
FORM OF UNDERWRITING AGREEMENT FOR
PREFERRED STOCK
Witco Corporation
Preferred Stock
Underwriting Agreement
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Witco Corporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the number of shares of Preferred Stock, without par value, of
the Company ("Preferred Stock"), set forth in Schedule I hereto (the
"Securities"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Under-
writer as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a
Delayed Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
<PAGE>
<PAGE>
2
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic Prospectus may
not include all the information with respect to the Securities
and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act
and the rules thereunder to be included therein as of the
Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement
to the form of prospectus included in such registration
statement relating to the Securities and the offering thereof.
As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the
Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for the use
of Form S-3 under the Act and has filed with the Commission a
registration statement (the file number of which is set forth
in Schedule I
<PAGE>
<PAGE>
3
hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments
thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will
next file with the Commission either (A) a final prospectus
supplement relating to the Securities in accordance with Rules
430A and 424(b)(1) or (4), or (B) prior to the effectiveness
of such registration statement, an amendment to such
registration statement, including the form of final prospectus
supplement. In the case of clause (A), the Company has
included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to
be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with
respect to the Securities and the offering thereof and, except
to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in
Section 3 hereof), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements
of the Act and the Securities Exchange Act of 1934 (the "Exchange Act")
and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
<PAGE>
<PAGE>
4
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to filing of the Final Prospectus. "Final
Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall
<PAGE>
<PAGE>
5
mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective) and, in the event
any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended. Such term shall include any Rule 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules
or regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is intended to
commence promptly after the effective date of a registration statement,
with the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities so
offered must be included in such registration statement at the
effective date thereof. A "Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence promptly after
the effective date of a registration statement, with the result that
only information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the
<PAGE>
<PAGE>
6
securities so offered. Whether the offering of the
Securities is a Non-Delayed Offering or a Delayed
Offering shall be set forth in Schedule I hereto.
(d) The financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Final Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement and the Final Prospectus present fairly the information
required to be stated therein; and the pro forma financial information,
and the related notes thereto, included or incorporated by reference in
the Registration Statement and the Final Prospectus has been prepared
in accordance with the applicable requirements of the Act and the
Exchange Act, as applicable.
(e) Neither the Company nor any of its significant
subsidiaries (as defined in Regulation S-X of the Commission)
("Significant Subsidiaries") has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Final Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Final Prospectus, there has not been any change in the capital stock
(other than pursuant to employee stock option plans existing on, or on
the conversion of convertible securities outstanding on, the date of
this Agreement), or any increase in the long-term debt of the Company
or any of its subsidiaries.
(f) The Company and its Significant Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Final Prospectus or such as do not in the
aggregate materially interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries, taken as a
whole; and any real property and buildings held under lease by the
Company and its Significant Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries,
taken as a whole.
(g) Except as disclosed in the Registration Statement and
Final Prospectus, neither the Company nor any of its subsidiaries (i)
has received notice or has actual knowledge of any claim, demand,
obligation, cause of action, accusation, allegation, order, violation,
damage, injury, judgment, penalty or fine which the Company has
reasonable cause to believe would individually or in the aggregate have
a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries resulting from (A) the violation or alleged violation of
any laws relating to air pollution, water pollution, noise control
and/or handling discharge, disposal or recovery of on-site or off-site
hazardous substances or materials, (B) any noncompliance with or
violation of the requirements of any environmental law, (C) the release
or threatened release of any toxic or hazardous waste, substance or
constituent or (D) any other Environmental Matter (as hereinafter
defined), or (ii) has reasonable cause to believe that the Company or
any of its subsidiaries is or will be liable in connection with the
release or threatened release of any toxic or hazardous waste,
substance or constituent, which liability would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, or (iii) has received notice or has actual
knowledge of any governmental investigation seeking remedial action in
connection with a release or threatened release of any toxic or
hazardous waste, substance or constituent for which the Company or any
of its subsidiaries may be liable and which could reasonably be
expected to have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries. "Environmental Matter" means (w) the
release of any amount of toxic or hazardous waste or substances,
pollutant or contaminant into the environment, (x) the management,
including the generation, handling, treatment, storage, transport,
discharge or disposal or recovery, whether on-site or off-site, of any
solid wastes, toxic or hazardous wastes, hazardous substances,
pollutants or contaminants, (y) the past and present use of surface
waters or groundwater and (z) the construction or maintenance of any
dams or levees.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
per share set forth in Schedule I hereto, the amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and time
may be postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company by certified or official bank check or checks
drawn on or by a New York Clearing House bank and payable in next day funds.
Delivery of the Underwriters' Securities shall be made at such location as the
Representatives shall reasonably designate at least one business day in advance
of the Closing Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Representatives in New
York, New York, not later than 1:00 p.m. on the business day prior to the
Closing Date.
<PAGE>
<PAGE>
7
4. Agreements. The Company agrees with the
several Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any
<PAGE>
<PAGE>
8
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities.
(f) During the period beginning from the Execution Date and
continuing to and including the earlier of (i) the termination of
trading restrictions for the Securities, as notified to the Company by
the Representatives and (ii) the Closing Date, the Company will not,
without the consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of (x) any debt securities issued or
guaranteed by the Company or (y) shares of any class of capital stock
of
<PAGE>
<PAGE>
9
the Company (other than the Securities) which is preferred as to the
payment of dividends, or as to the distribution of assets upon any
liquidation or dissolution of the Company, over shares of any other
class of capital stock of the Company.
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and
the Company further agrees that if it commences engaging in business
with the government of Cuba or with any person or affiliate located in
Cuba after the date the Registration Statement becomes or has become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
(h) The Company will pay all costs and expenses incident to
the performance of it obligations hereunder, including, without
limiting the generality of the foregoing, all costs and expenses (i)
incident to the preparation, issuance, execution, authentication and
delivery of the Securities, (ii) incident to the preparation, printing
and filing under the Securities Act of the Registration Statement, the
Preliminary Final Prospectus and the Final Prospectus (including in
each case all exhibits, amendments and supplements thereto), (iii)
incurred in connection with the registration or qualification and
determination of eligibility for investment of the Securities under the
laws of such jurisdictions as the Representatives may designate
(including fees of counsel for the Representatives and their
disbursements), (iv) in connection with the listing of the Securities
on any stock exchange, (v) related to any filing with the National
Association of Securities Dealers, Inc., and (vi) in connection with
the printing (including word processing and duplication costs) and
delivery of any documents in connection with the offering, purchase,
sale and delivery of the Securities and the furnishing to the
Representatives, the Underwriters and dealers of copies of the
Registration Statement, the Preliminary Final Prospectus and the Final
Prospectus, including mailing and shipping, as herein provided. It is
understood, however, that except as provided in this Section,
Section 6 and Section 7 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their own counsel,
any transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 p.m. New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 p.m. New York City time on such date or
(ii) 12:00 noon New York City time on the business day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date;
if filing of the Final Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Final Prospectus, and any such
<PAGE>
<PAGE>
10
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives
the opinion or letter of Cravath, Swaine & Moore, counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus;
(ii) the Company's authorized equity capitalization is
as set forth in the Final Prospectus; the capital stock of the
Company conforms to the description thereof contained in the
Final Prospectus; the Securities have been duly and validly
authorized, conform in all material respects to the
descriptions thereof in the Final Prospectus, and when issued
and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and nonassessable; the
Securities are duly authorized for listing, subject to
official notice of issuance, on the New York Stock Exchange;
the certificates for the Securities are in valid and
sufficient form; and the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities;
(iii) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the
<PAGE>
<PAGE>
11
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange
Act and the respective rules thereunder; and such counsel has
no reason to believe that at the Effective Date the
Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus includes
any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company; and
(v) to the best knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained;
In rendering such opinion, such counsel may rely (x) as to matters
involving the application of laws of any jurisdiction other than the
State of New York or the United States, or the General Corporation Law
of the State of Delaware, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the
Underwriters and (y) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph
(b) include any supplements thereto at the Closing Date.
<PAGE>
<PAGE>
12
(c) The Company shall have furnished to the Representatives
the opinion of Dustan E. McCoy, Vice President and General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and its material subsidiaries
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and
is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction
wherein the failure to so qualify would have a material
adverse effect upon the Company and its Subsidiaries
considered as a whole;
(ii) all the outstanding shares of capital stock of
each Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable and, except as
otherwise set forth in the Final Prospectus, all outstanding
shares of capital stock of these Subsidiaries are owned by the
Company either directly or through wholly owned Subsidiaries
free and clear of any perfected security interest and to the
best knowledge of such counsel, any other security interests,
claims, liens or encumbrances;
(iii) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or
<PAGE>
<PAGE>
13
agreements relating to the Company fairly
summarize such matters;
(iv) neither the issue and sale of the Securities, nor
the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its Subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its Subsidiaries; and
(v) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
(d) The Representatives shall have received from
, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this
Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in
all material respects on and as of the Closing
<PAGE>
<PAGE>
14
Date with the same effect as if made on the Closing Date and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the financial condition, earnings, business or properties
of the Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) At the Closing Date, Ernst & Young LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma financial
statements included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with
standards established by
<PAGE>
<PAGE>
15
the American Institute of Certified Public Accountants of the
unaudited interim financial information as indicated in their
reports incorporated in the Registration Statement and the
Final Prospectus; carrying out certain specified procedures
(but not an examination in accordance with generally accepted
auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and executive, finance and audit
committees of the Company and the Subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(A) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(B) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in the
consolidated capital stock
<PAGE>
<PAGE>
16
(other than issuances of capital stock upon exercise
of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions
of convertible securities, in each case which were
outstanding on the date of the latest balance sheet
included or incorporated by reference in the
Registration Statement and the Final Prospectus) or
any increase in the consolidated long-term debt of
the Company and its subsidiaries or decreases in the
shareholders' equity of the Company or decreases in
net assets of the Company and its subsidiaries as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Final
Prospectus, or for the period from the date of the
most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year in net revenues or
operating profit or net sales or net income per share
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(C) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting,
<PAGE>
<PAGE>
17
financial or statistical nature (which is limited to
accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the
Final Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or incorporated
in Item 6 of the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus,
and the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma financial statements included or incorporated in the
Registration Statement and the Final Prospectus, carrying out
certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have
responsibility for financial and accounting matters, and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Ernst & Young LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in
form and
<PAGE>
<PAGE>
18
substance satisfactory to the Representatives, to the
effect set forth above.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purpose of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
<PAGE>
<PAGE>
19
The documents required to be delivered by this Section 5 shall
be delivered at the offices of Cravath, Swaine & Moore, counsel for the Company,
at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the Closing Date.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not con-
summated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by
any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all reasonable out-
of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of
the Securities.
7. Indemnification and Contribution. (a) The
Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the
registration statement for the registration of the
Securities as originally filed or in any amendment thereof,
or in the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse
each Underwriter, as incurred, for any legal or other
expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that
the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion therein; and provided further, that the Company
<PAGE>
<PAGE>
20
shall not be liable to any Underwriter under the indemnity agreement in this
subsection (a) with respect to any Preliminary Final Prospectus to the extent
that any such loss, claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Securities to a person as to whom it shall
be established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Final Prospectus (excluding documents
incorporated by reference) or of the Final Prospectus as then amended or
supplemented (excluding documents incorporated by reference) in any case where
such delivery is required by the Act if the Company has previously furnished
copies thereof to such Underwriter and the loss, claim, damage or liability of
such Underwriter results from an untrue statement or omission of a material fact
contained in the Preliminary Final Prospectus which was corrected in the Final
Prospectus (excluding documents incorporated by reference) or in the Final
Prospectus as then amended or supplemented (excluding documents incorporated by
reference).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made therein in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
<PAGE>
<PAGE>
21
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) In the event any indemnifying party to this Agreement
determines to settle, compromise or consent to the entry of any judgment in or
otherwise seek to terminate any pending or threatened action, claim, suit,
investigation or proceeding in respect of which any indemnified party under
subsection (a) or (b) above is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, at the request of such
indemnified party, the indemnifying party will reconfirm its obligations under
this Section 7 at such time.
(e) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable
<PAGE>
<PAGE>
22
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
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 obligations of the Underwriters
of Securities in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(f) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the
<PAGE>
<PAGE>
23
obligations of the Underwriters under this Section 7 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of the
Act.
8. Default by an Underwriter. (a) If any Underwriter shall
default in its obligation to purchase any of the Securities which it has agreed
to purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Securities, the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Securities on such terms. In the event that,
within the respective prescribed period, the Representatives notify the Company
that they have so arranged for the purchase of such Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Securities, the Representatives or the Company shall have the right to postpone
the Closing Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Final Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Final Prospectus which in the opinion of the Representatives
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect if such
person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of shares of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the shares of the Securities,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of shares of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to
<PAGE>
<PAGE>
24
purchase its pro rata share (based on the number of shares of Securities which
such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangement have not been
made; but nothing herein shall relive a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate number of shares of Securities which remains unpurchased exceeds
one-eleventh of the aggregate number of all the shares of the Securities, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon be terminated, without liability on the part of any
non-defaulting Underwriter or the Company, except for the indemnity and
contribution agreements in this Section 7; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to such
time (a) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (b) a banking moratorium
shall have been declared either by Federal or New York State authorities or (c)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
10. Representations and Indemnities to Survive.
The respective indemnities, agreements, representations,
warranties and other statements of the Company and the
several Underwriters, as set forth in this Agreement or made
<PAGE>
<PAGE>
25
by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 7 hereof, the
representations and warranties in Section 1 hereof and any representation or
warranty as to the accuracy of the Registration Statement or the Final
Prospectus contained in any certificate furnished by the Company pursuant to
Section 5 hereof, insofar as they may constitute a basis for indemnification for
liabilities (other than payment by the Company of expenses incurred or paid in
the successful defense of any action, suit or proceeding) arising under the Act,
shall not extend to the extent of any interest therein of a controlling person
or partner of any Underwriter who is a director, officer or controlling person
of the Company when the Registration Statement has become effective, except in
each case to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public policy
as expressed in the Act. Unless in the opinion of counsel for the Company the
matter has been settled by controlling precedent, the Company will, if a claim
for such indemnification is asserted, submit to a court of appropriate
jurisdiction the question whether such interest is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at One American Lane, Greenwich, Connecticut
06831, attention of the General Counsel.
12. Successors. This Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters,
the Company and, to the extent provided in Section 7 and
Section 10 hereof, the officers and directors of the Company
<PAGE>
<PAGE>
26
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
13. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
WITCO CORPORATION,
by
-------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
by
---------------------------
Name:
Title:
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-65203
Representative(s):
Amount and Purchase Price of Securities:
Number of shares:
Purchase price per share:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Modification of items to be covered by the letter from Ernst & Young LLP
delivered pursuant to Section 5(e) at the Execution Time:
<PAGE>
<PAGE>
SCHEDULE II
Number of Shares
Underwriters to be purchased
----------------
----------------
Total........................................................
================
<PAGE>
