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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 2, 1994
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W. R. GRACE & CO.
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(Exact name of registrant as specified in its charter)
New York 1-3720 13-3461988
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
One Town Center Road, Boca Raton, Florida 33486-1010
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 407/362-2000
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Item 5. OTHER EVENTS.
On August 2, 1994, W. R. Grace & Co. and its wholly owned subsidiary,
W. R. Grace & Co.-Conn. (collectively, "Grace"), entered into an Underwriting
Agreement relating to the offering of $300 million principal amount of 8% Notes
Due 2004 ("Notes"). Information concerning the Notes and related matters is set
forth in Grace's Prospectus dated August 2, 1994, as supplemented by a Prospec-
tus Supplement dated August 2, 1994, which have been filed with the Securities
and Exchange Commission pursuant to Rule 424 under the Securities Act of 1933.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
The Underwriting Agreement referred to in Item 5 is being filed as an
exhibit to this Report.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed by the undersigned
thereunto duly authorized.
W. R. GRACE & CO.
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(Registrant)
By s/Robert B. Lamm
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Robert B. Lamm
Vice President and Secretary
Dated: August 8, 1994
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W. R. Grace & Co.
CURRENT REPORT ON FORM 8-K
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- - ----------- -----------
1 Underwriting Agreement dated August 2, 1994
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- - --------------------------------------------------------------------------------
W. R. GRACE & CO.-CONN. (a Connecticut corporation),
ISSUER
W. R. GRACE & CO. (a New York corporation),
GUARANTOR
8% Notes Due 2004
UNDERWRITING AGREEMENT
Dated August 2, 1994
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- - --------------------------------------------------------------------------------
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W. R. GRACE & CO.-CONN. (a Connecticut corporation),
ISSUER
W. R. GRACE & CO. (a New York corporation),
GUARANTOR
8% Notes Due 2004
UNDERWRITING AGREEMENT
August 2, 1994
To the Underwriters named in Schedule I
Dear Sirs:
W. R. Grace & Co.-Conn., a Connecticut corporation (the "Company"),
proposes to sell to the underwriter or underwriters named in Schedule I certain
of the Company's debt securities (the "Offered Securities"), such sale of
Offered Securities to be on the terms and conditions stated herein and in
Schedule II.
The Offered Securities will be unconditionally guaranteed (the
"Guarantees") as to payment of principal (and premium, if any) and interest, if
any, by W. R. Grace & Co., a New York corporation and sole shareholder of the
Company (the "Guarantor").
The Offered Securities and the Guarantees will be issued under an
indenture dated as of January 28, 1993 (the "Indenture") among the Company, the
Guarantor and NationsBank of Georgia, National Association, trustee (the
"Trustee"). The Offered Securities to be sold pursuant to this Agreement, as
specified in Schedule II, and the related Guarantees are collectively referred
to as the "Securities".
As used herein, unless the context otherwise requires, the term
"Underwriters" shall mean the firm or firms named as Underwriter or Underwriters
in Schedule I and the term "you" shall mean the Underwriter or Underwriters, if
no underwriting syndicate is purchasing the Offered Securities, or the
representative or representatives of the Underwriters, if an underwriting
syndicate is purchasing the Offered Securities, as indicated in Schedule I.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 33-50983), including a basic prospectus relating to offerings of the
Securities and certain other securities that may be issued by the Company, as
well as a basic prospectus relating to certain securities that may be issued by
the Guarantor, and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "1933 Act").
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2
Such registration statement has been declared effective by the Commission. As
provided in Section 3(a), a prospectus supplement reflecting the terms of the
Securities, the terms of the offering thereof and the other matters set forth
therein has been prepared and will be filed pursuant to Rule 424 under the 1933
Act. Such prospectus supplement, in the form first filed after the date hereof
pursuant to Rule 424, is herein referred to as the "Prospectus Supplement".
Such registration statement, as amended at the date hereof, including the
exhibits thereto and the documents incorporated by reference therein, is herein
called the "Registration Statement", and the basic prospectus included therein
relating to offerings of the Securities and certain other securities that may be
issued by the Company under the Registration Statement, as supplemented by the
Prospectus Supplement, is herein called the "Prospectus", except that, if such
basic prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term "Prospectus"
shall refer to such basic prospectus as so amended or supplemented and as
further supplemented by the Prospectus Supplement, in either case including the
documents filed by the Guarantor with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), that are incorporated by
reference therein.
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company and
the Guarantor, jointly and severally, represent and warrant to, and agree with,
each of the Underwriters that:
(i) On the original effective date of the Registration Statement, on
the effective date of the most recent post-effective amendment thereto, if
any, on the date of the filing by the Guarantor of any annual report on
Form 10-K after the original filing of the Registration Statement, on the
date hereof and at the Closing Time (as defined below), (a) the
Registration Statement, as amended as of any such time, and the Prospectus,
as amended or supplemented as of any such time, complied and will comply in
all material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission thereunder (the "1933 Act Regulations"),
(b) the Designated Indenture (as defined below) complied and will comply in
all material respects with the requirements of the Trust Indenture Act of
1939, as amended (the "1939 Act"), and the rules and regulations of the
Commission thereunder (the "1939 Act Regulations") and (c) the Registration
Statement, as amended as of any such time, and the Prospectus, as amended
or supplemented as of any such time, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; PROVIDED that the Company and the Guarantor make no
representations or warranties as to any statements or omissions made in
reliance upon and in conformity with information furnished or confirmed in
writing to the Company or the Guarantor by or on behalf of any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus or as to that part of the Registration Statement that
constitutes the Statement of Eligibility under the 1939 Act (Form T-1) of
the Trustee. At the Closing Time, the Designated Indenture will comply in
all material respects with the requirements of the 1939 Act and the 1939
Act Regulations.
(ii) The documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission or as amended, complied in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations") and,
when read together with
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3
the other information in the Prospectus, do not and will not, on the date
hereof and at the Closing Time, include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) Price Waterhouse, who have reported on certain of the financial
statements included or incorporated by reference in the Registration
Statement, are independent accountants within the meaning of the 1933 Act
and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantor.
(v) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Guarantor and its consolidated subsidiaries as of
the dates indicated, and the consolidated results of operations and cash
flows of the Guarantor and its consolidated subsidiaries for the periods
specified, in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except
as indicated therein. The financial statement schedules, if any, included
or incorporated by reference in the Registration Statement present fairly
the information required to be stated therein when read in conjunction with
the related consolidated financial statements. Except as indicated in the
Prospectus, the selected financial data, if any, included therein are
fairly stated in all material respects in relation to the consolidated
financial statements from which they have been derived.
(vi) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Connecticut, with
full corporate power and authority under such laws to own its properties
and conduct its business. The Company is duly qualified to do business as
a foreign corporation in good standing in all jurisdictions in which the
conduct of its business or the ownership or leasing of its properties
requires such qualification, with only such exceptions as would not
materially adversely affect the conduct of the business of the Guarantor
and its subsidiaries considered as one enterprise.
(vii) All of the issued and outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable; and all of such shares of capital stock of the Company are
owned by the Guarantor free and clear of any liens, claims, equities or
encumbrances in favor of others or restricting the Guarantor's disposition
thereof, except that the terms of various financing arrangements of the
Guarantor and the Company require the Guarantor to hold shares representing
not less than 75% in voting power of all the voting stock of the Company
and that certain financing arrangements effectively limit the disposition
by the Guarantor of shares of capital stock of the Company.
(viii) The Guarantor is a corporation duly incorporated and validly
existing in good standing under the laws of the State of New York, with
full corporate power and authority under such laws to own its properties
and conduct its business. The Guarantor is duly qualified to do business
as a foreign corporation in good standing in
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3
all jurisdictions in which the conduct of its business or the ownership or
leasing of its properties requires such qualification, with only such
exceptions as would not materially adversely affect the conduct of the
business of the Guarantor and its subsidiaries considered as one
enterprise.
(ix) All of the issued and outstanding shares of capital stock of the
Guarantor have been duly authorized and validly issued and are fully paid
and nonassessable, and none of such shares was issued in violation of the
preemptive rights of any stockholder of the Guarantor.
(x) Each Significant Subsidiary (as defined below) of the Company is
a corporation or partnership duly organized and validly existing in good
standing under the laws of its jurisdiction of organization, with full
corporate or other power and authority under the laws of its jurisdiction
of organization to own its properties and conduct the business in which it
is engaged. Each Significant Subsidiary is duly qualified to do business
as a foreign corporation or partnership in good standing in all
jurisdictions in which the conduct of its business or the ownership or
leasing of its properties requires such qualification, with only such
exceptions as would not materially adversely affect the conduct of the
business of the Guarantor and its subsidiaries considered as one
enterprise. "Significant Subsidiary" means any corporation (other than the
Company) or partnership that is a subsidiary of the Guarantor and that, as
of December 31 of the most recently completed fiscal year of the Guarantor
for which financial statements are available, was a "significant
subsidiary" as defined in Regulation S-X under the 1933 Act and 1934 Act or
that, if acquired after such date, would have been a "significant
subsidiary" as defined therein if it had been acquired as of such date.
(xi) All of the issued and outstanding shares of capital stock of each
Significant Subsidiary that is a corporation have been duly authorized and
validly issued and are fully paid and nonassessable, and all partnership
interests in each Significant Subsidiary that is a partnership have been
duly authorized. The shares of capital stock and the partnership interests
of each Significant Subsidiary owned directly or indirectly by the
Guarantor are owned free and clear of any liens, claims, equities or
encumbrances in favor of others or restricting the Guarantor's disposition
thereof, which liens, claims, equities or encumbrances are material to the
Guarantor and its subsidiaries considered as one enterprise, except for
restrictions on the sale of certain shares of such stock or certain of such
partnership interests by the Guarantor and certain of its subsidiaries
pursuant to various financing arrangements, or partnership, joint venture
or other agreements.
(xii) The Indenture as executed is substantially in the form filed as
an exhibit to the Registration Statement. Such Indenture, as supplemented
by any and all supplements thereto, if any, to the date hereof and the
supplement thereto, the Board Resolution and/or the Officers' Certificate
(as such terms are defined in the Indenture) setting forth the terms of the
Securities (such Indenture, as so supplemented by any such supplements and
by such supplement, Board Resolution and/or Officers' Certificate, being
herein referred to as the "Designated Indenture"), has been duly authorized
by the Company and the Guarantor. The Designated Indenture, when duly
executed and delivered (to the extent required by such Indenture) by the
Company,
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5
the Guarantor and the Trustee, will constitute a valid and binding
obligation of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiii) The Offered Securities have been duly authorized by the Company
and, when executed, authenticated, issued and delivered in the manner
provided for in the Designated Indenture and sold and paid for as provided
herein, will constitute valid and binding obligations of the Company,
entitled to the benefits of the Designated Indenture and enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(xiv) The Guarantees have been duly authorized by the Guarantor and,
when the Guarantees and Offered Securities are executed, authenticated,
issued and delivered in the manner provided for in the Designated Indenture
and sold and paid for as provided herein, the Guarantees will constitute
valid and binding obligations of the Guarantor, entitled to the benefits of
the Designated Indenture and enforceable against the Guarantor in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xv) Each of the Securities and the Designated Indenture conform to
the descriptions thereof contained in the Prospectus.
(xvi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
disclosed therein or contemplated thereby, there has been no material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business.
(xvii) Neither the Company, the Guarantor nor any Significant Subsidiary
is in violation of its certificate of incorporation (in the case of
corporate subsidiaries) or its certificate of limited partnership or its
partnership agreement (in the case of partnership subsidiaries) or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any bond, debenture, note or other
evidence of indebtedness or in the terms of any class of its preferred
stock or in any contract, indenture, mortgage, loan agreement, lease or
other agreement or instrument to which the Company, the Guarantor or any
Significant Subsidiary is a party or by which any of them or any of their
properties are bound, which violation or default is material to the
Guarantor and its subsidiaries considered as one
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6
enterprise. The execution and delivery of this Agreement, the Designated
Indenture, the incurrence of the obligations herein and therein set forth,
the consummation of the transactions herein and therein contemplated and
compliance with the terms and provisions hereof and thereof are within the
corporate power of the Company and the Guarantor and do not and will not
result in any violation of the certificate of incorporation or by-laws of
the Company, the Guarantor or any Significant Subsidiary (or, with respect
to any Significant Subsidiary that is a partnership, its certificate of
limited partnership or partnership agreement) or conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the imposition of any lien, charge or encumbrance upon
any property of the Company, the Guarantor or any Significant Subsidiary
under, any indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company, the Guarantor or any
Significant Subsidiary is a party or by which they or any of their
properties are bound, or any existing applicable law, rule or regulation,
or any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, the Guarantor or any Significant Subsidiary or any of their
properties, or any published rule, regulation or policy of any United
States securities exchange on which any securities of the Company or the
Guarantor are listed.
(xviii) No authorization, approval, consent or license of any regulatory
body or authority (other than under the 1933 Act, the 1939 Act and the
securities or Blue Sky laws of the various states) is legally required of
the Company or the Guarantor for the valid authorization, issuance, sale
and delivery of the Securities or for the execution, delivery or
performance of the Designated Indenture by the Company and the Guarantor.
(xix) No action, suit or other proceeding at law or in equity is
pending or threatened to which the Company, the Guarantor or any
Significant Subsidiary is a party, and no proceeding is pending or
threatened against or affecting the Company, the Guarantor or any
Significant Subsidiary before or by any governmental official or
commission, board or other administrative agency, wherein an unfavorable
decision, ruling or finding would materially adversely affect the
consummation of this Agreement or the condition (financial or otherwise),
earnings, business affairs or business prospects of the Guarantor and its
subsidiaries considered as one enterprise, except as may otherwise be
disclosed in the Prospectus.
(xx) The Guarantor (or the Company or one or more of their
subsidiaries) holds all material licenses, certificates and permits from
governmental authorities necessary for the conduct of the business of the
Guarantor and its subsidiaries (considered as one enterprise) and owns, or
possesses adequate rights to use, all material patents, inventions,
trademarks and other rights necessary for the conduct of such business.
(b) Any certificate signed by any officer of the Company or the
Guarantor and delivered to you or to counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company and the Guarantor, jointly and severally, to each
Underwriter as to the matters covered thereby.
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7
Section 2. PURCHASE AND SALE. (a) On the basis of the
representations and warranties herein contained (except as may be otherwise
specified in Schedule II) and subject to the terms and conditions herein and
therein set forth, the Company agrees to issue and sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the
Company, at the purchase price to the Underwriters set forth in Schedule II, the
principal amount of Offered Securities set forth opposite the name of such
Underwriter in Schedule I.
(b) Payment of the purchase price for, and delivery of, the Offered
Securities to be purchased by the Underwriters shall be made at the date, time
and location specified in Schedule II, or at such other date, time or location
as shall be agreed upon by the Company and you, or as shall otherwise be
provided in Section 10 (such date and time being herein called the "Closing
Time"). Unless otherwise specified in Schedule II, payment shall be made to the
Company by certified or official bank check or checks in New York Clearing House
or similar next day funds payable to the order of the Company, against delivery
to you for the respective accounts of the several Underwriters of such Offered
Securities, which may be in temporary form. Such Offered Securities shall be in
such authorized denominations and registered in such names as you may request in
writing at least two full business days before the Closing Time. Such Offered
Securities will be made available for examination and packaging by you not later
than 10:00 A.M. on the business day prior to the Closing Time.
Section 3. COVENANTS. The Company and the Guarantor covenant with
each Underwriter as follows:
(a) If reasonably requested by you in connection with the offering of
the Securities, the Company and the Guarantor will prepare a preliminary
prospectus supplement containing such information as you, the Company and
the Guarantor deem appropriate, and, immediately following the execution of
this Agreement, will prepare a Prospectus Supplement that complies with the
1933 Act and the 1933 Act Regulations and that sets forth the aggregate
principal amount of the Offered Securities and the terms of the Securities
not otherwise specified in the basic prospectus, the name of each
Underwriter participating in the offering and the principal amount of
Offered Securities that each severally has agreed to purchase, the name of
each Underwriter, if any, acting as representative of the Underwriters in
connection with the offering of the Securities, the price at which the
Offered Securities are to be purchased by the Underwriters from the
Company, any initial public offering price, any selling concession and
reallowances, and such other information as you, the Company and the
Guarantor deem appropriate in connection with the offering of the
Securities. The Company and the Guarantor will promptly transmit copies of
the Prospectus Supplement to the Commission for filing pursuant to Rule 424
under the 1933 Act and will furnish to the Underwriters as many copies of
any preliminary prospectus supplement and the Prospectus as you shall
reasonably request.
(b) If, at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of Offered Securities by an
Underwriter or dealer, any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Underwriters or
counsel for the Company and the
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8
Guarantor, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company and the Guarantor will promptly prepare and file
with the Commission such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of Offered Securities, the Company
and the Guarantor will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of Offered Securities by an
Underwriter or dealer, the Company and the Guarantor will inform you of any
intention to file any amendment to the Registration Statement, any
supplement to the Prospectus or any document that would as a result thereof
be incorporated by reference in the Prospectus; will furnish you with
copies of any such amendment, supplement or other document a reasonable
time in advance of filing; and will not file any such amendment, supplement
or other document in a form to which you or your counsel shall reasonably
object; except that the Company and the Guarantor shall immediately inform
you of the filing of documents pursuant to Section 14(d) of the 1934 Act
and shall furnish you with copies thereof, and you or your counsel shall
not be entitled to object thereto other than pursuant to Section 3(b).
(e) During the period when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of Offered Securities by an
Underwriter or dealer, the Company and the Guarantor will inform you
immediately of, and confirm in writing, (i) the effectiveness of any
amendment to the Registration Statement, (ii) the mailing or the delivery
to the Commission for filing of any supplement to the Prospectus or any
document that would as a result thereof be incorporated by reference in the
Prospectus, (iii) the receipt of any comments from the Commission with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement, (iv) any request by the Commission for any amendment to the
Registration Statement or any supplement to the Prospectus or for
additional information relating thereto or to any document incorporated by
reference in the Prospectus and (v) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, the
suspension of the qualification of any of the Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any of
such purposes. The Company and the Guarantor will use their best efforts
to prevent the issuance of any such stop order or of any order suspending
such qualification and, if any such order is issued, to obtain the lifting
thereof as soon as possible.
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9
(f) The Company has furnished or will furnish to you as many signed
copies as you may reasonably request of the registration statement (as
originally filed) and of all amendments thereto, whether filed before or
after the Registration Statement became effective, copies of all exhibits
and documents filed therewith or incorporated by reference therein (through
the end of the period when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of Offered Securities by an Underwriter
or dealer) and signed copies of all consents and certificates of experts,
and has furnished or will furnish to you, for each of the
Underwriters, one conformed copy of the registration statement (as
originally filed) and of each amendment thereto.
(g) The Company and the Guarantor will use their best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such jurisdictions as you
may reasonably request and will comply to the best of their ability with
such laws so as to permit sales of and dealings in the Securities, PROVIDED
that neither the Company nor the Guarantor shall be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company and the Guarantor will file such statements and reports as may be
required by the laws of each jurisdiction in which the Securities have been
qualified as above provided. The Company and the Guarantor will also
supply you with such information as is necessary for the determination of
the legality of the Securities for investment under the laws of such
jurisdictions as you may reasonably request.
(h) The Guarantor will make generally available to its security
holders as soon as practicable, but not later than 45 days after the close
of the period covered thereby (90 days in case the period covered
corresponds to a fiscal year of the Guarantor), an earnings statement of
the Guarantor (in form complying with the provisions of Rule 158 of the
1933 Act Regulations), covering a period of 12 months beginning after (i)
the effective date of the Registration Statement (but not later than the
first day of the Guarantor's fiscal quarter next following such effective
date) and (ii) the date hereof (but not later than the first day of the
Guarantor's fiscal quarter next following the date hereof).
(i) If and to the extent specified in Schedule II, the Company will
use its best efforts to cause the Securities to be duly authorized for
listing on the stock exchange or exchanges specified in Schedule II and, if
required, to be registered under the 1934 Act, subject to your providing to
the relevant stock exchange or exchanges any required information as to the
distribution of the Securities meeting the standards of such stock exchange
or exchanges.
(j) Between the date hereof and the Closing Time or such other date
as may be specified in Schedule II, neither the Company nor the Guarantor
will, without your prior consent, offer or sell, or enter into any
agreement to sell, in a public offering, any debt securities issued or
guaranteed by the Company or the Guarantor with a maturity of more than one
year (other than the Offered Securities). This limitation is not
applicable to the public offering of tax exempt securities guaranteed
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10
by the Company or the Guarantor or to such other public offering of debt
securities as may be specified in Schedule II.
(k) The Company and the Guarantor have complied with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
statutes, and all regulations promulgated thereunder relating to issuers
doing business in Cuba, and will comply with such provisions and
regulations during the period when the Prospectus is required by the 1933
Act to be delivered in connection with sales of Offered Securities by an
Underwriter or dealer.
Section 4. PAYMENT OF EXPENSES. The Company and the Guarantor
agree to pay and bear, jointly and severally, all costs and expenses incident
to the performance of their obligations under this Agreement, including (a) the
preparation, printing and filing of the registration statement (including
financial statements, if any, and exhibits) as originally filed and all
amendments thereto, any preliminary prospectus supplements and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and distribution of
this Agreement, the Designated Indenture, the certificates representing the
Securities, the Blue Sky Survey, the Legal Investment Survey and any
Underwriters' Questionnaire, (c) the delivery of the Securities to the
Underwriters, (d) the fees and disbursements of counsel and accountants of the
Company and the Guarantor, (e) the qualification of the Securities under the
applicable securities laws in accordance with Section 3(g) and any filing for
review of the offering with the National Association of Securities Dealers,
Inc., including filing fees and reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the Blue Sky
Survey and the Legal Investment Survey, (f) any fees charged by rating agencies
for rating the Securities, (g) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee, in connection with the
Designated Indenture and the Securities and (h) the expenses, if any, of listing
the Securities on any stock exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company and the Guarantor shall
reimburse the Underwriters for all their out-of-pocket expenses, including the
fees and disbursements of counsel for the Underwriters.
Section 5. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. Except as
otherwise provided in Schedule II, the obligations of the Underwriters to
purchase and pay for the Offered Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Company and
the Guarantor contained herein or in certificates of any officer of the Company
or the Guarantor delivered pursuant to the provisions hereof, to the performance
by the Company and the Guarantor of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) At the Closing Time, no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and
no proceedings for that purpose shall have been instituted or shall be
pending or, to your knowledge or the knowledge of the Company or the
Guarantor, shall be contemplated by the Commission, and any request on the
part of the Commission for additional
<PAGE>
11
information shall have been complied with to the satisfaction of counsel
for the Underwriters.
(b) At the Closing Time you shall have received an opinion of the
General Counsel of the Company and the Guarantor, dated as of the Closing
Time, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of
Connecticut, with full corporate power and authority under such
laws to own its properties and conduct its business.
(ii) The Guarantor is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
New York, with full corporate power and authority under such laws
to own its properties and conduct its business.
(iii) Each of the Company and the Guarantor is duly qualified
to do business as a foreign corporation in good standing in all
jurisdictions in which the conduct of its business or the ownership
or leasing of its properties requires such qualification, with only
such exceptions as would not materially adversely affect the
conduct of the business of the Guarantor and its subsidiaries
considered as one enterprise.
(iv) All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued and
are fully paid and nonassessable. All of such shares of capital
stock of the Company are owned by the Guarantor free and clear of
any liens, claims, equities or encumbrances in favor of others or
restricting the Guarantor's disposition thereof, except that the
terms of various financing arrangements of the Guarantor and the
Company require the Guarantor to hold shares representing not less
than 75% in voting power of all the voting stock of the Company
and that certain financing arrangements effectively limit the
disposition by the Guarantor of shares of capital stock of the
Company.
(v) All of the issued and outstanding shares of capital stock of
the Guarantor have been duly authorized and validly issued and are
fully paid and nonassessable, and none of such shares was issued in
violation of the preemptive rights of any stockholder of the
Guarantor.
(vi) Except as disclosed in the Prospectus, each Significant
Subsidiary is a corporation or partnership duly organized and
validly existing in good standing under the laws of the
jurisdiction of its organization and has full corporate or other
power and authority to own its properties and conduct the business
in which it is engaged. All of the issued and outstanding shares
of capital stock of each Significant Subsidiary that is a
corporation have been duly authorized and validly issued and are
fully paid and nonassessable, and all the partnership interests in
each Significant Subsidiary that is a partnership have been duly
authorized. To the best of such counsel's knowledge, the
<PAGE>
12
shares of capital stock and the partnership interests of each
Significant Subsidiary owned directly or indirectly by the
Guarantor are owned free and clear of any liens, claims, equities
or encumbrances in favor of others or restricting the Guarantor's
disposition thereof, which liens, claims, equities or encumbrances
are material to the Guarantor and its subsidiaries, considered as
one enterprise, except for restrictions on the sale of certain
shares of such stock or certain of such partnership interests by
the Guarantor and certain of its subsidiaries pursuant to various
financing arrangements, or partnership, joint venture or other
agreements.
(vii) The Designated Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and,
assuming the due authorization, execution and delivery by the
Trustee, constitutes a valid and binding obligation of the Company
and the Guarantor, enforceable against the Company and the
Guarantor in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(viii) The Offered Securities have been duly authorized by the
Company and, assuming that the Offered Securities have been duly
authenticated by the Trustee in the manner described in its
certificate delivered to you at the Closing Time (which fact such
counsel need not determine by an inspection of the Offered
Securities), the Offered Securities have been duly executed, issued
and delivered by the Company and constitute valid and binding
obligations of the Company, entitled to the benefits of the
Designated Indenture and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(ix) The Guarantees relating to the Offered Securities have
been duly authorized by the Guarantor and, assuming that the
Offered Securities have been duly authenticated by the Trustee in
the manner described in its certificate delivered to you at the
Closing Time (which fact such counsel need not determine by an
inspection of the Offered Securities), the Guarantees have been
duly endorsed on the Offered Securities, executed, issued and
delivered and constitute valid and binding obligations of the
Guarantor, entitled to the benefits of the Designated Indenture
and enforceable against the Guarantor in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding
in equity or at law).
<PAGE>
13
(x) Each of the Securities and the Designated Indenture conforms
in all material respects as to legal matters to the descriptions
thereof contained in the Prospectus.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(xii) The Indenture has been duly qualified under the 1939
Act.
(xiii) No authorization, approval, consent or license of any
regulatory body or authority (other than under the 1933 Act, the
1939 Act and the securities or Blue Sky laws of the various
states), is presently legally required of the Company or the
Guarantor for the valid authorization, issuance, sale and delivery
of the Securities as provided in the Prospectus, or for the
execution, delivery or performance of the Designated Indenture by
the Company and the Guarantor or, if so required, all such
authorizations, approvals, consents and licenses, specifying the
same, have been obtained and are in full force and effect.
(xiv) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, leases or other
documents of a character required to be described or referred to in
the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement, other than those so described,
referred to or filed. The existing contracts, indentures,
mortgages, loan agreements, leases and other documents so
described, referred to or filed are correctly described as referred
to therein, and no default exists in the due performance or
observance of any obligation, agreement, covenant or condition
contained in any contract or lease so described, referred to or
filed, which default is material to the Guarantor and its
subsidiaries considered as one enterprise.
(xv) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened to which
the Guarantor or any of its subsidiaries is or may be a party, or
of which any of their properties are or may be the subject, that
are required to be disclosed in the Registration Statement or
Prospectus, other than those disclosed therein.
(xvi) The descriptions in the Prospectus of such of the
statutes, regulations, legal or governmental proceedings, contracts
and other documents as have been included therein are accurate in
all material respects and set forth the information required to be
shown in the context presented.
(xvii) The issuance and delivery of the Securities, the
execution and delivery of this Agreement and the Designated
Indenture, the consummation of the transactions herein and therein
contemplated, and compliance with the terms hereof and thereof are
within the corporate power of the Company and the Guarantor, have
been duly authorized by all necessary corporate action and do not
and will not (A) result in any violation of the certificate of
incorporation or by-laws of the Company, the Guarantor or any
Significant
<PAGE>
14
Subsidiary (or, with respect to any Significant Subsidiary that is
a partnership, its certificate of limited partnership or
partnership agreement) or (B) conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under, or result in the imposition of any lien, charge or
encumbrance upon any property of the Company, the Guarantor or any
Significant Subsidiary under (1) any indenture, mortgage, loan
agreement, note, lease or other agreement or instrument known to
such counsel to which the Company, the Guarantor or any Significant
Subsidiary is a party or by which they or any of their properties
are bound, or (2) any existing applicable law, rule or regulation
(other than the securities or Blue Sky laws of the various states,
as to which such counsel need express no opinion), or (3) any
judgment, order or decree known to such counsel of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Guarantor or any Significant
Subsidiary or any of their properties, or (4) any published rule,
regulation or policy of any United States securities exchange on
which any securities of the Company or the Guarantor are listed.
(xviii) The Registration Statement has become effective under
the 1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for that purpose have been instituted
or are pending or are threatened under the 1933 Act.
(xix) The Registration Statement and the Prospectus, and each
amendment or supplement thereto (except for the documents
incorporated by reference therein and except for the financial
statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need express no opinion), as of their respective
effective or issue dates, appear on their face to have been
appropriately responsive in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations. The
Designated Indenture and the Statement of Eligibility of the
Trustee on Form T-1 filed with the Commission as part of the
Registration Statement appear on their face to have been
appropriately responsive in all material respects to the
requirements of the 1939 Act and the 1939 Act Regulations.
(xx) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial or
statistical data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no
opinion, and except to the extent that any statement in any such
document is modified or superseded in a subsequently filed document
or in the Prospectus), as of the dates they were filed with the
Commission, appear on their face to have been appropriately
responsive in all material respects to the requirements of the 1934
Act and the 1934 Act Regulations.
(xxi) Such counsel has participated in the preparation of the
Registration Statement, the Prospectus and the documents
incorporated by
<PAGE>
15
reference therein, and no facts have come to his attention to lead
him to believe (A) that the Registration Statement or any amendment
thereto (except for the financial statements and other financial or
statistical data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no
opinion), on the original effective date of the Registration
Statement, on the effective date of the most recent post-effective
amendment thereto, if any, on the date of the filing of any annual
report on Form 10-K after the filing of the Registration Statement,
on the date hereof or on the date any such post-effective amendment
became effective after the date hereof, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or (B) that the Prospectus or any amendment
or supplement thereto (except for the financial statements and
other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel
need express no opinion), at the time the Prospectus Supplement was
issued, at the time any such amended or supplemented Prospectus was
issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
Such opinion shall be to such further effect with respect to other legal
matters relating to this Agreement and the offering of the Securities as
counsel for the Underwriters may reasonably request. In giving such
opinion, such counsel may rely, as to all matters governed by laws other
than the law of the State of New York and the federal law of the United
States, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Underwriters, in which case the foregoing opinion shall
state the belief that you and he are entitled to so rely. Such counsel may
also state that he expresses no opinion on fraudulent conveyances and that,
insofar as such opinion involves factual matters, he has relied, to the
extent he deems proper, upon certificates of officers of the Company or the
Guarantor, or both, and their subsidiaries and certificates of public
officials.
(c) At the Closing Time, you shall have received the favorable
opinion of Shearman & Sterling, counsel for the Underwriters, dated as of
the Closing Time, together with signed or reproduced copies of such opinion
for each of the other Underwriters, to the effect that the opinion or
opinions delivered pursuant to Section 5(b) appear on their face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by you, and with respect to the
incorporation and legal existence of the Company and the Guarantor, the
Securities, this Agreement, the Designated Indenture, the Registration
Statement, the Prospectus, the documents incorporated by reference therein
and such other related matters as you may require. In giving such opinion
such counsel may rely, as to all matters governed by laws other than the
law of the State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to you. Such counsel may also state
that they express no opinion on fraudulent conveyances and that, insofar as
such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company or the Guarantor,
or both, and its subsidiaries and certificates of public officials.
<PAGE>
16
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and
the 1933 Act Regulations and shall conform in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the 1939 Act Regulations, and neither the Registration Statement nor
the Prospectus, as they may then be amended or supplemented, shall contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) there shall not have been, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise disclosed therein or contemplated thereby,
any material adverse change in the condition (financial or otherwise),
earnings, business affairs or business prospects of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business and (iii) the representations and warranties of
the Company and the Guarantor set forth in Section 1(a) shall be accurate
as though expressly made at and as of the Closing Time, unless any such
representation and warranty expressly indicates that it is being made as of
any specific date, in which case such representation and warranty shall
have been true as of such date. At the Closing Time, you shall have
received a certificate of the President or an Executive or Senior Vice
President, and the Chief Financial Officer or the Treasurer, of each of the
Company and the Guarantor, dated as of the Closing Time, to such effect.
(e) You shall have received the letter specified in Section 1 of
Schedule III at the date hereof and the letter specified in Section 2 of
Schedule III at the Closing Time.
(f) Between the date hereof and the Closing Time, no downgrading
shall have occurred in the rating accorded to any debt securities
(including commercial paper) of the Company or the Guarantor, including the
Offered Securities, if any, by Moody's Investors Service, Inc. or Standard
& Poor's Corporation.
(g) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the offering of the
Securities as herein contemplated, related proceedings and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties and statements of
the Company and the Guarantor, the performance of any of the covenants of
the Company and the Guarantor, or the fulfillment of any of the conditions
herein contained. All proceedings taken by the Company and the Guarantor
at or prior to the Closing Time in connection with the authorization,
issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Underwriters and to counsel for
the Underwriters.
(h) The Securities shall have been duly authorized for listing by
each of the stock exchanges specified in Schedule II, if any, subject only
to official notice of issuance thereof and notice of a satisfactory
distribution of the Securities.
<PAGE>
17
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, other than by reason of any
default of the Underwriters, this Agreement may be terminated by you on notice
to the Company and the Guarantor at any time at or prior to the Closing Time,
and such termination shall be without liability of any party to any other party,
except as provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. INDEMNIFICATION. (a) The Company and the Guarantor,
jointly and severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of or based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arising out of or based upon
an untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or of any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company and the Guarantor; and
(iii) against any and all expenses whatsoever (including fees and
disbursements of counsel chosen by you, except to the extent otherwise
expressly provided in Section 6(c)), reasonably incurred in investigating,
preparing or defending against any litigation, any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) above;
PROVIDED that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission (A) made in reliance upon and in
conformity with information furnished or confirmed in writing to the Company or
the Guarantor by or on behalf of any Underwriter through you expressly for use
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement thereto)
or (B) made in that part of the Registration Statement constituting the
Statement of Eligibility under the 1939 Act (Form T-1) of the Trustee.
<PAGE>
18
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls an Underwriter within the meaning of Section 15 of the 1933 Act
and who, at the date hereof, is a director, officer or controlling person of the
Company or the Guarantor, such indemnity agreement is subject to the
undertakings of the Company and the Guarantor in the Registration Statement
under Item 17 thereof.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and the Guarantor, their directors, each of their officers who
signed the Registration Statement, and each person, if any, who controls the
Company or the Guarantor within the meaning of Section 15 of the 1933 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 6(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto) or any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with information furnished or confirmed in
writing to the Company or the Guarantor by or on behalf of any Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate
at its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the indemnified
parties defendant in such action, which approval shall not be unreasonably
withheld; PROVIDED that, if such indemnified party or parties reasonably
determine that there may be legal defenses available to them that are different
from or in addition to those available to such indemnifying party or parties,
then such indemnifying party or parties shall not be entitled to assume such
defense. If the indemnifying party or parties are not entitled to assume the
defense of such action as a result of the proviso to the preceding sentence,
counsel for the indemnifying party or parties shall be entitled to conduct the
defense of such indemnifying party or parties and counsel for the indemnified
party or parties shall be entitled to conduct the defense of such indemnified
party or parties, it being understood that both such counsel will cooperate with
each other to conduct the defense of such action as efficiently as possible. If
an indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall be liable under this Section 6 for any settlement of
any claim or action effected without its consent.
Section 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances under which the indemnity provided for
in Section 6 is for any
<PAGE>
19
reason held to be unenforceable by the indemnified parties although applicable
in accordance with its terms, each indemnifying party shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity incurred by the Company, the Guarantor or one or
more of the Underwriters in such proportions that (a) the Underwriters are
responsible for that portion of such losses represented by the percentage that
the underwriting discount or any other compensation to the Underwriters
hereunder with respect to the offering of the Offered Securities bears to the
initial public offering price of the Offered Securities and (b) the Company and
the Guarantor, jointly and severally, are responsible for the balance; PROVIDED
that (i) in no case shall any Underwriter be responsible for any amount in
excess of such underwriting discount and other compensation with respect to the
Offered Securities purchased by it (except as may be provided in any agreement
among underwriters) and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Company or the Guarantor, each officer of the Company or the Guarantor who
signed the Registration Statement, and each person, if any, who controls the
Company or the Guarantor within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company and the Guarantor.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities and agreements contained
in this Agreement or in certificates of officers of the Company or the Guarantor
delivered pursuant hereto shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company, the
Guarantor or any Underwriter or controlling person and will survive delivery of
and payment for the Offered Securities.
Section 9. TERMINATION OF AGREEMENT. (a) You may terminate this
Agreement, by notice to the Company and the Guarantor, at any time at or prior
to the Closing Time (i) if there has been, since the respective dates as of
which information is given in the Registration Statement and Prospectus, except
as otherwise disclosed therein or contemplated thereby, any material adverse
change in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Guarantor and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if (1) there has occurred any outbreak or escalation of hostilities or other
calamity or crisis or (2) trading in any securities of the Company or the
Guarantor has been suspended by the Commission or a United States securities
exchange, or if trading generally on the New York Stock Exchange, on any stock
exchange specified in Schedule II or in the over-the-counter market has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or by
order of the Commission or any other governmental authority, the effect of any
of which is such as to make it, in your judgment, impracticable to market the
Offered Securities or enforce contracts for the sale of Offered Securities or
(iii) if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to Section 5 or this
Section 9, the Company and the Guarantor shall not be liable to any of the
Underwriters for damages on account of loss of anticipated profits arising out
of the transactions covered by this
<PAGE>
20
Agreement. Notwithstanding any such termination, the provisions of Sections 4,
6, 7 and 8 shall remain in effect.
Section 10. DEFAULT. If one or more of the Underwriters shall fail
at the Closing Time to purchase the Offered Securities that it or they are
obligated to purchase (the "Defaulted Offered Securities"), you shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Offered Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Offered Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the aggregate principal amount of the Offered
Securities to be purchased, the non-defaulting Underwriters shall be
obligated to purchase the full amount thereof in the proportions that their
respective underwriting obligations bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Offered Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 10% of the aggregate principal amount of the Offered Securities to
be purchased, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter, the Company or the Guarantor.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of any default by an Underwriter as set forth in this
Section 10, either you or the Company and the Guarantor shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Section 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed as set forth in Schedule I.
Notices to the Company or the Guarantor, or both of them, shall be directed to
them at One Town Center Road, Boca Raton, Florida 33486-1010, attention of
Treasurer (with a copy to the Secretary).
Section 12. PARTIES. The agreement herein set forth is made solely
for the benefit of the several Underwriters, the Company and the Guarantor and,
to the extent expressed, any person controlling the Company, the Guarantor or
any of the Underwriters, and the directors of the Company and the Guarantor,
their officers who have signed the Registration Statement, and their respective
executors, administrators, successors and assigns and, subject to the provisions
of Section 10, no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
<PAGE>
21
any purchaser, as such purchaser, from any Underwriter of the Offered
Securities. If there are two or more Underwriters, all of their obligations
hereunder are several and not joint.
Section 13. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of New York applicable to contracts made and
to be performed entirely within such State. Specified times of day refer to New
York City time.
Section 14. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
-------------------------------------------------------------
24976/NYL2
<PAGE>
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Guarantor and
each Underwriter in accordance with its terms.
Very truly yours,
W. R. GRACE & CO.-CONN.
By /s/ Peter Houchin
------------------------------------------
Name and Title: Peter Houchin
-------------- Senior Vice President
and Treasurer
W. R. GRACE & CO.
By /s/ Peter Houchin
------------------------------------------
Name and Title: Peter Houchin
-------------- Senior Vice President
and Treasurer
CONFIRMED AND ACCEPTED as of
the date first above written:
J.P. Morgan Securities Inc.
Citicorp Securities, Inc.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
Salomon Brothers Inc
By: J.P. Morgan Securities Inc.
By /s/ Maria Sramek
-------------------------------------
Name and Title: Maria Sramek
-------------- Vice President
<PAGE>
SCHEDULE I
to
Underwriting Agreement
Dated August 2, 1994
W. R. GRACE & CO.-CONN.
W. R. GRACE & CO.
8% NOTES DUE 2004
Underwriter Principal Amount of
----------- Offered Securities to be
Purchased
------------------------
J.P. Morgan Securities Inc.. . . . . . . . . . . . . . $75,000,000
Citicorp Securities, Inc.. . . . . . . . . . . . . . . 75,000,000
Merrill Lynch, Pierce,
Fenner & Smith Incorporated . . . . . . . . . . . . 75,000,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . 75,000,000
------------
$300,000,000
------------
------------
Notices to Underwriters:
All notices hereunder to any Underwriter shall be addressed to
it, c/o J.P. Morgan Securities Inc., 60 Wall Street, New York, New York 10260
Attention: Capital Markets, 4th Floor.
<PAGE>
SCHEDULE II
to
Underwriting Agreement
Dated August 2, 1994
W. R. GRACE & CO.-CONN.
W. R. GRACE & CO.
PRICE DETERMINATION AGREEMENT
8% NOTES DUE 2004
A. General
Current ratings: Baa3/BBB-
Closing date, time and location: August 9, 1994; 10:00 a.m.; offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York
B. Terms of Offered Securities
Principal amount to be issued: $300,000,000
Interest rate: 8%, payable semi-annually in arrears each February 15 and
August 15, commencing February 15, 1995
Date of maturity: August 15, 2004
Redemption provisions: None
Sinking fund requirements: None
Initial public offering price: 99.794% of the principal amount plus
accrued interest from August 9, 1994.
Purchase price: 99.144% of the principal amount plus accrued interest from
August 9, 1994 (payable in next day funds).
Listing requirement: None
Delayed delivery contracts: Not authorized
<PAGE>
II-2
C. Lock-up period:
(i) Last day of lock-up period contemplated by Section 3(j): August 9,
1994
Exclusion contemplated by last sentence of Section 3(j) (if any): none
<PAGE>
SCHEDULE III
to
Underwriting Agreement
dated August 2, 1994
MATTERS TO BE COVERED BY LETTER OR LETTERS
OF INDEPENDENT ACCOUNTANTS
Price Waterhouse shall have furnished to you the following letters (in each case
in form and substance satisfactory to you):
(1) At the date hereof, a letter, dated the date hereof, in form and substance
satisfactory to you, to the effect that:
(a) They are independent certified public accountants with respect to
the Guarantor within the meaning of the Securities Act of 1933 (the
"1933 Act") and the applicable published rules and regulations
thereunder (the "1933 Act Regulations");
(b) In their opinion, the consolidated financial statements of the
Guarantor and its subsidiaries audited by them and included or
incorporated by reference in the Prospectus comply as to form in
all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations with respect to
registration statements on Form S-3 and, to the extent applicable,
the Securities Exchange Act of 1934 (the "1934 Act") and the
published rules and regulations thereunder (the "1934 Act
Regulations") with respect to annual reports on Form 10-K;
(c) On the basis of procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of:
(i) a reading of the minutes of all meetings of the Guarantor's
shareholders, Board of Directors, Audit Committee and Financing
Committee since December 31 of the year ending at least one year
prior to the date of such letter as set forth in the minute books
through a specified date not more than five business days prior to
the date of delivery of such letter;
(ii) performing the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in Statement of Accounting Standards No.
71, Interim Financial Information, on the unaudited interim
financial statements of the Guarantor and its consolidated
subsidiaries included or incorporated by reference in the
Prospectus; and
(iii) making inquiries of certain officials of the Guarantor who have
responsibility for financial and accounting matters regarding the
specific items for which representations are requested below;
nothing has come to their attention as a result of the foregoing
procedures that caused them to believe that:
<PAGE>
III-2
(A) the unaudited interim financial statements, if any, included
or incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act
Regulations and, to the extent applicable, the 1934 Act and
the 1934 Act Regulations applicable to quarterly reporting
on Form 10-Q;
(B) any material modifications should be made to the unaudited
interim financial statements, if any, included or
incorporated by reference in the Prospectus for them to be
in conformity with generally accepted accounting principles;
(d) In addition to their audits, inspections, inquiries and other
procedures referred to therein, they have performed such other
procedures, specified by you, not constituting an audit, as they
have agreed to perform and report on with respect to certain
amounts, percentages, numerical data and other financial
information in the Registration Statement, the Prospectus and the
exhibits to the Registration Statement or in the documents
incorporated by reference in the Prospectus, and have compared
certain of such amounts, percentages, numerical data and financial
information with, and have found such items to be in agreement with
or derived from, the detailed accounting records of the Guarantor
and its consolidated subsidiaries.
(2) At the Closing Time, a letter dated the Closing Time (the "Closing
Letter") to the effect that:
(a) They reaffirm as of the date of the Closing Letter (and as though
made on the date of the Closing Letter) all statements made in the
letter dated on the date of the Agreement, if any, except that the
inquiries and procedures specified therein shall have been carried
out to a specified date not more than five days prior to the date
of the Closing Letter.
(b) On the basis of the inquiries and procedures referred to in Section
1(c) of Schedule III (but carried out to the specified date
referred to in Section 2(a) of Schedule III), nothing came to their
attention that caused them to believe that, from the date of the
latest balance sheet or statement of operations, as the case may
be, of the Guarantor and its subsidiaries included or incorporated
by reference in the Prospectus to such specified date, there was:
(i) any change (other than by issuance of shares pursuant to the
exercise of stock options or otherwise related to employee benefit
plans, pursuant to conversions of convertible securities or
pursuant to business acquisitions) in the Common Stock of the
Guarantor, as compared with the amount shown in such latest balance
sheet, or any issuance of shares of any other class of capital
stock of the Guarantor; or
(ii) any increase in the total amount of consolidated short-term and
long-term debt of the Guarantor and its consolidated subsidiaries
(excluding debt or subsidiaries principally engaged in business
outside the United States and Canada); except in all instances for
changes, increases or decreases that the
<PAGE>
III-3
Prospectus discloses have occurred or may occur or that are
described in the Closing Letter.
(c) Such letter shall further state that, in addition to their audits,
inspections, inquiries and other procedures referred to therein,
they have performed such other procedures, specified by you, not
constituting an audit, as they have agreed to perform and report on
with respect to certain amounts, percentages, numerical data and
other financial information in the Registration Statement, the
Prospectus and the exhibits to the Registration Statement or in the
documents incorporated by reference in the Prospectus, and have
compared certain of such amounts, percentages, numerical data and
financial information with, and have found such items to be in
agreement with or derived from, the detailed accounting records of
the Guarantor and its consolidated subsidiaries.
