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) May 6, 1998
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Cytec Industries Inc.
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(Exact name of registrant as specified in its character)
Delaware 1-12372 22-3268660
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
Five Garret Mountain Plaza
West Paterson, NJ 07424
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 973-357-3100
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(Former name or former address, if changed since last report.)
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2
Item 5. Other Events
On May 6, 1998, Cytec Industries Inc. (the "Company") entered
into an Underwriting Agreement providing for the sale of an aggregate of
$120,000,000 principal amount of 6.846% MandatOry Par Put Remarketed
Securities SM ("MOPPRS SM") due May 11, 2025, in a public offering
co-managed by Merrill Lynch & Co., SBC Warburg Dillon Read Inc., Morgan
Stanley Dean Witter and Salomon Smith Barney. The Company expects to
receive an aggregate of approximately $123.75 million in proceeds from such
sale before deducting expenses associated with such sale.
Item 7. Financial Statements and Exhibits
Exhibits:
1. Underwriting Agreement, dated as of May 6, 1998
between the Registrant and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, SBC Warburg
Dillon Read Inc., Morgan Stanley & Co.
Incorporated and Salomon Brothers Inc.
4.2 Form of Remarketing Agreement between the Registrant and
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Cytec Industries Inc.
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(Registrant)
Date May 8, 1998 By: /s/ E. F. Jackman
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E. F. Jackman
Vice President
$120,000,000 of 6.846% MandatOry Par Put Remarketed Securities due May 11, 2025
CYTEC INDUSTRIES INC.
Underwriting Agreement
May 6, 1998
New York, New York
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Cytec Industries Inc., 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 March 15, 1998, between the Company and PNC Bank,
National Association, as trustee (the "Trustee"). The terms of such sales,
pursuant to this Agreement, are described in Schedule I hereto. 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 Underwriter 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 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, as amended (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
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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 is responsive to all the
disclosure requirements of the Act and the rules and regulations
thereunder 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. The Company shall not file a Rule 462(b)
Registration Statement without the consent of the
Representatives.
(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 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 (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) 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 (x), 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 supple ment 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.
The Company shall not file a Rule 462(b) Registration Statement
without the consent of the Representatives.
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(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, 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, as amended (the "Exchange Act") (with respect to
documents incorporated by reference in the Registration Statement) and
the Trust Indenture Act of 1939, as amended (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 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 expressly
and 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. "Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement became
or becomes 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 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
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any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. 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", "Rule 462(b)" 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. "Rule 462(b) Registration
Statement" shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered
by the Registration Statement. 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 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) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission.
(e) Except as described in the Final Prospectus, since the
respective dates as of which information is given in the Registration
Statement and the Final Prospectus, there has not been (i) any
increase in the long-term debt of the Company and its consolidated
subsidiaries in an amount in excess of $10,000,000, other than
indebtedness incurred to pay obligations under the rate lock
agreements of the Company described in the Final Prospectus or (ii)
except as set forth or contemplated in the Final Prospectus, any
material adverse change, or development or event likely to result in a
prospective material adverse change, in or affecting the general
affairs, financial position, stockholders' equity or
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results of operations of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect").
(f) The Company and each of Cytec Fiberite Inc., Cytec Global
Holdings Inc. and Cytec Technology Corp. (the "Material Subsidiaries")
have been duly incorporated and are validly existing as corporations
in good standing under the laws of the State of Delaware, with
corporate power and authority to own their properties and conduct
their business as described in the Final Prospectus, to execute and
deliver this Agreement, any Delayed Delivery Contracts and the
Indenture and to issue and sell the Securities as herein contemplated
and have been duly qualified as foreign corporations for the
transaction of business and are in good standing under the laws of
each other jurisdiction in which they own or lease properties or
conduct any business so as to require such qualification, except where
failure to be so qualified would not reasonably be expected to have a
Material Adverse Effect.
(g) The Company and each of its Material Subsidiaries have good
title to all manufacturing plants or facilities (together with the
land upon which it is erected and fixtures comprising a part thereof)
located in the United States of America (excluding territories and
possessions) the net book value (as defined in the Indenture) of which
exceeds 1.5% of Consolidated Net Tangible Assets (as defined in the
Indenture), except any such plant or facility which is a pollution
control or other facility financed by obligations issued by a state or
local governmental unit and described in Sections 141(a), 142(a)(5),
142(a)(6), 142(a)(10) or 144(a) of the Internal Revenue Code of 1986,
as amended (or any successor provision thereof), or which in the
opinion of the Board of Directors of the Company is not of material
importance to the total business conducted by the Company and its
subsidiaries as a whole (each, a "Principal Property" and
collectively, the "Principal Properties"), 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 materially affect the value of
such Principal Property and do not interfere with the use made of such
Principal Property by the Company and its Material Subsidiaries,
except where such impairment or interference would not reasonably be
expected to have a Material Adverse Effect; and the Principal
Properties held under lease by the Company and the Material
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 of such Principal Property by the Company and the
Material Subsidiaries except where such interference would not
reasonably be expected to have a Material Adverse Effect.
(h) The execution, delivery and performance of this Agreement,
any Delayed Delivery Contracts and the Indenture, the issuance and
sale of the Securities and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument of which the Company
or any of the Material Subsidiaries is a party or by which the Company
or any of the Material Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Material Subsidiaries
is subject, except where such breach or violation would not reasonably
be expected to have a Material Adverse Effect,
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nor will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute
or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of the Material
Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the Securities, qualification of the Indenture under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters.
(i) Neither the Company nor any of the Material Subsidiaries is
(i) in violation of its Certificate of Incorporation or By-laws or
(ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, where such default would be reasonably likely to have a
Material Adverse Effect.
(j) The Indenture has been duly authorized by the Company and
when executed and delivered by the Company will be a legal, valid and
binding agreement of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(k) The Securities, when issued in accordance with this Agreement
and the Indenture, will have been duly authorized by the Company and
when executed and delivered by the Company will constitute legal,
valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(l) The Delayed Delivery Contracts, if any, have been duly
authorized by the Company and when executed and delivered by the
Company will constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(m) The Remarketing Agreement to be dated May 11, 1998 between
the Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(the "Remarketing Agreement") has been duly authorized by the Company
and, when executed and delivered by the Company, will constitute a
legal, valid and binding obligation of the Company enforceable in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, fraudulent transfer, moratorium or other
laws now or hereafter in effect relating to creditors' rights
<PAGE>
generally and subject to general principles of equity, including,
without limitation, concepts of reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at law or in equity,
and except that rights to indemnification or contribution may be
limited by Federal or State securities laws or public policy relating
thereto).
(n) This Agreement has been duly authorized, executed and
delivered by the Company.
(o) The Securities, the Delayed Delivery Contracts, if any, the
Indenture and the Remarketing Agreement conform in all material
respects to the description thereof contained in the Registration
Statement and Final Prospectus (as applicable).
(p) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder.
(q) All legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement
or the Final Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
(r) Other than as set forth or contemplated in the Final
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of the Material Subsidiaries is a party or of
which any property of the Company or any of the Material Subsidiaries
is the subject which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect; and, to the
best of the Company's knowledge, there are no proceedings threatened
or contemplated by governmental authorities or threatened by others
which would reasonably be expected to have a Material Adverse Effect.
(s) The consolidated financial statements included or
incorporated by reference in the Registration Statement and the Final
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the
consolidated results of operations and the consolidated cash flows of
the Company and its subsidiaries for the periods specified; such
financial statements, except as described therein, have been prepared
in conformity with generally accepted accounting principles applied on
a consistent basis during the periods involved.
(t) The Company is not and, after giving effect to the offering
and sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(u) Neither the Company nor any of its affiliates as defined
within Section 517.021 of the Florida Statutes does business with the
government of
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Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes.
(v) Other than as set forth or contemplated in the Final
Prospectus, each of the Company and the Material Subsidiaries are in
material compliance with all applicable federal, state and local
environmental laws and regulations, including those applicable to
emissions to the environment, waste management and waste disposal
(collectively, "Environmental Laws"), except for such noncompliance as
would not, to the best knowledge of the Company, reasonably be
expected to have a Material Adverse Effect.
(w) Other than as set forth or contemplated in the Final
Prospectus, (i) there is no claim under any Environmental Law,
including common law, pending or, to the best knowledge of the
Company, threatened or contemplated against the Company or the
Material Subsidiaries (an "Environmental Claim") which would
reasonably be expected to have a Material Adverse Effect and (ii) to
the knowledge of the Company, under applicable law, there are no past
or present actions, activities, circumstances, events or incidents,
including releases of any material into the environment, that could
form the basis of any Environmental Claim against the Company or the
Material Subsidiaries which would reasonably be expected to have a
Material Adverse Effect.
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 such Securities
pursuant to delayed delivery arrangements, the respective principal amount
of such Securities to be purchased by the Underwriters shall be as set
forth in Schedule II hereto less the respective principal amount 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 pro vided 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 such 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 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
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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 any 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 equal to the total principal amount of
Contract Securities multiplied by a fraction, the numerator of which is the
principal amount of Securities set forth opposite the name of such
Underwriter and the denominator of which is 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, acting jointly
and without regard to any agreement among underwriters, 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 same day funds or as otherwise may be agreed as set
forth in Schedule I hereto. 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 one full business day 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 PM 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 to the Registration Statement or supple ment (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 on a timely basis. 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
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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) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (iii) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, or
any document that would be incorporated therein by reference shall
have been filed, (iv) of any request by the Commission at any time
when a prospectus relating to the Securities is required to be
delivered under the Act for any amendment of the Registration
Statement or supplement to the Final Prospectus or for any additional
information relating to the offering of the Securities, (v) of the
issuance by the Commission at any time when a prospectus relating to
the Securities is required to be delivered under the Act of any stop
order suspending the effectiveness of the Registration Statement or
the institution or threatened institution 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 threatened
initiation 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, prior to the completion of the distribution
of the Securities by the Underwriters (notification of completion to
be sent to the Company within 24 hours of such completion), 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, in the
opinion of counsel for the Company, 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) advise the Underwriters promptly of the happening of
such event, (ii) prepare and file with the Commission, at the
Company's expense, 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 (iii) supply any
supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, but in any event not later than
eighteen months after the Effective Date, 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 and documents incorporated by reference therein (not
including the 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
<PAGE>
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities offered by the Company 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, will arrange for the determination of the legality of
the Securities for purchase by institutional inves tors and will pay
the fee of the National Association of Securities Dealers, Inc., in
connection with its review, if any, of the offering; provided,
however, that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this
Section 4(e), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not
so subject.
(f) The Company will furnish to the Representatives upon request,
without charge, for so long as any of the Securities shall remain
outstanding, up to a period of one year from the date hereof, (i)
copies of any reports or other communications which the Company shall
send to its stockholders as a class and (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar form as may be designated by the
Commission and copies of any other reports or financial statements
furnished to or filed with any national securities exchange on which
any class of securities of the Company is listed.
(g) The Company will furnish to the Representatives as early as
practicable prior to the time of purchase, but no later than two
business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements, if any, of the Company and
its subsidiaries which have been read by the Company's independent
certified public accountants, as stated in their letter to be
furnished pursuant to Section 5(f) of this Agreement.
(h) The Company agrees to apply the net proceeds from the sale of
the Securities in the manner set forth under the caption "Use of
Proceeds" in the Final Prospectus.
(i) The Company agrees to pay all expenses, fees and taxes
incident to the performance of its obligations under this Agreement,
including, without limitation, (i) the preparation and filing of the
Registration Statement, each related preliminary prospectus, the Final
Prospectus, any documents incorporated by reference therein at or
after the date thereof and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(ii) the preparation, issuance, execution, authentication and delivery
of any engraved Securities, (iii) the qualification of the Securities
for offering and sale under state laws and the determination of their
eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue
sky surveys or legal investment surveys to the Underwriters and to
dealers,
<PAGE>
(iv) any listing of the Securities on any securities exchange and any
registration thereof under the Exchange Act, (v) any fees payable to
investment rating agencies with respect to the Securities, (vi) any
filing for review of the public offering of the Securities by the
National Association of Securities Dealers, Inc. and (vii) the fees
and disbursements of the Trustee. It is understood, however, that,
except as provided in (iii) above and Section 6 hereof, the
Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, any transfer taxes, and any advertising
expenses connected with any offers they may make.
(j) The Company agrees to furnish to you, before filing with the
Commission subsequent to the effective date of the Registration
Statement and during the period referred to in paragraph (b) above, a
copy of any document proposed to be filed pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(k) The Company agrees to such other provisions as may be set
forth in Schedule I hereto.
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 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 PM New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 PM 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 supplement, shall have been
filed in the manner and within the time period required by Rule
424(b); and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Edward F. Jackman, Vice President, General Counsel and
Secretary of the Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Material Subsidiaries has
been duly incorporated and is validly existing and, based solely
on a certificate of good standing, is 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,
based solely on certificates of good standing or other similar
certificates of public officials and officers of the Company, is
duly
<PAGE>
qualified to do business as a foreign corporation and is in good
standing under the laws of each U.S. jurisdiction which requires
such qualification wherein it owns or leases a manufacturing
facility and where its failure to so qualify would reasonably be
expected to have a Material Adverse Effect;
(ii) all outstanding shares of capital stock of the Material
Subsidiaries are owned by the Company either directly or by
wholly owned subsidiaries free and clear of any perfected
security interest;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether in a proceeding at law or in equity); and the Securities
have been duly authorized by the Company and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and 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 enforceable against the Company in
accordance with their terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of
whether in a proceeding at law or in equity);
(iv) to the knowledge of such counsel, there is no pending
or threatened suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of the Material Subsidiaries that would reasonably be
expected to have a Material Adverse Effect and is of a character
required to be disclosed in the Registration Statement which is
not 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 to the Registration Statement, which is
not described or filed as required and which absence to be so
described or filed would reasonably be expected to have a
Material Adverse Effect and the statements included in the Form
10-K for the fiscal year ended December 31, 1997, incorporated by
reference in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the
Company fairly summarize such matters;
<PAGE>
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming
that they have been duly authorized, executed and delivered by
the purchasers thereunder) are valid and binding agreements of
the Company;
(vii) the Remarketing Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by Merrill Lynch, Pierce,
Fenner & Smith Incorporated, constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principals of equity,
including, without limitation, concepts of reasonableness, good
faith and fair dealing, regardless of whether in a proceeding at
law or in equity, and except that rights to indemnification or
contribution may be limited by Federal or State securities laws
or public policy relating thereto);
(viii) no consent, approval, authorization, order,
registration or qualification with any court or governmental
agency or body is required for the issue and sale of the
Securities or the consummation of the trans actions contemplated
herein or in any Delayed Delivery Contracts, except the
registration under the Act of the Securities, qualification of
the Indenture under the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications 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;
(ix) the execution, delivery and performance of this
Agreement, any Delayed Delivery Contracts, the Remarketing
Agreement and the Indenture, the issue and sale of the Securities
and the consummation of the transactions herein and therein
contemplated will not conflict with, result in a breach or
violation of any of the terms or provisions or constitute a
default under the Certificate of Incorporation or by-laws of the
Company or the terms of any indenture, loan agreement or other
material agreement or instrument known to such counsel
(including, but not limited to, mortgages and deeds of trust) to
which the Company or any of the Material Subsidiaries is a party
or bound or to which any of the property or assets of the Company
or any of the Material Subsidiaries is subject, except where such
breach or violation would not reasonably be expected to have a
Material Adverse Effect, or contravene any law, rule or
regulation of the United States of America or the State of New
York or the General Corporation Law of the State of Delaware or
any judgment, order or decree known to such counsel to be
applicable to the Company or any of the Material Subsidiaries of
any court, regulatory body, adminis-
<PAGE>
trative agency, governmental body or arbitrator having
jurisdiction over the Company or any of the Material
Subsidiaries;
(x) to the best of such counsel's knowledge, neither the
Company nor any of the Material Subsidiaries is in default in the
performance or observance of any material obligation, agreement
covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement
or instrument to which it is a party or by which it or any of its
properties may be bound, except where such default would not
reasonably be expected to have a Material Adverse Effect;
(xi) the Annual Reports on Form 10-K for the fiscal years
ended December 31, 1996 and December 31, 1997, the Current
Reports on Form 8-K dated September 3, 1997, September 30, 1997
(as amended on December 15, 1997), March 18, 1998 and April 16,
1998, incorporated by reference in the Registration Statement and
the Final Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment
was filed), complied as to form in all material respects with the
Exchange Act (except as to the financial statements and schedules
and other financial and statistical data contained or
incorporated by reference therein as to which such counsel need
express no opinion);
(xii) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement; and
(xiii) such other legal opinions with respect to the
Securities as may be set forth in Schedule I hereto.
Such counsel shall state that 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
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or threatened.
Such counsel shall also state that such counsel had no reason to
believe that as of the Effective Date the Registration Statement
contained an untrue statement of a material fact or omitted 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 or that as of the Closing Date the Final Prospectus
includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading and the Registration Statement and the Final Prospectus as
amended or supplemented, and any further amendments and supplements
thereto made by the Company prior to the Closing Date (other than the
financial statements, including the notes thereto and related
schedules, and other financial data and accounting information
contained or
<PAGE>
incorporated by reference therein, as to which such counsel need
express no opinion), appeared on their face to be appropriately
responsive in all material respects to the requirements of the Act and
the rules and regulations thereunder.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Delaware, the State of New York or the United
States, to the extent such counsel deems proper and specifies in such
opinion, upon the opinion of other counsel of good standing whom such
counsel believes to be reliable and who are reasonably satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent such counsel deems 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 Cravath, Swaine & Moore, counsel for the Company, dated the
Closing Date, to the effect that:
(i) based solely on a certificate from the Secretary of
State of the State of Delaware, 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 under such laws to own its
properties and conduct its business as described in the Final
Prospectus;
(ii) the statements set forth in the Basic Prospectus and
the Final Prospectus under the captions "Description of Debt
Securities" and "Description of the MOPPRS", respectively,
insofar as such statements constitute a summary of the documents
referred to therein, constitute fair summaries of such documents.
The Securities conform in all material respects to the
description thereof contained in the Registration Statement and
Final Prospectus;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a legal, valid
and binding instrument enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally from time to time in effect and subject to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at law or in
equity); and the Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and 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
enforceable against the Company in accordance with their terms
(subject to applicable bankruptcy,
<PAGE>
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally from time to time in effect and subject to
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding at law or in
equity);
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Registration Statement, at the time the Registration
Statement became effective, and the Final Prospectus, as of the
Closing Date (in each case except the financial statements and
other information of a statistical, accounting or financial
nature included therein (except the Statement of Eligibility
(Form T-1) included as an exhibit to the Registration Statement,
as to which we do not express any view), were appropriately
responsive in all material respects to the requirements of the
Act and the Trust Indenture Act;
(vi) the Remarketing Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by Merrill Lynch, Pierce,
Fenner & Smith Incorporated, constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms (subject to applicable bankruptcy,
reorganization, insolvency, fraudulent transfer, moratorium or
other laws now or hereafter in effect relating to creditors'
rights generally and subject to general principals of equity,
including, without limitation, concepts of reasonableness, good
faith and fair dealing, regardless of whether in a proceeding at
law or in equity, and except that rights to indemnification or
contribution may be limited by Federal or State securities laws
or public policy relating thereto);
(vii) no authorization, approval or other action by, and no
notice to, consent of, order of, or filing with, any United
States Federal, New York or, to the extent required under the
General Corporation Law of the State of Delaware, Delaware
governmental authority or regulatory body is required for the
consummation of the transactions contemplated by this Agreement,
except such as have been obtained under the Act or the Trust
Indenture 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;
(viii) the Indenture has been duly qualified under the Trust
Indenture Act; and
(ix) such other legal opinions with respect to the
Securities as may be set forth in Schedule I hereto.
Such counsel shall state that 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
<PAGE>
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened.
Such counsel shall also state that they have no reason to believe
that as of the Effective Date the Registration Statement (except the
financial statements and other information of an accounting or
financial nature included therein, or incorporated by reference
therein or omitted therefrom, and the Statement of Eligibility on Form
T-1 included as an exhibit to the Registration Statement, as to which
such counsel need express no view) contained an untrue statement of a
material fact or omitted 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 or that as of the Closing
Date the Final Prospectus includes an untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Such counsel shall also state that the
statements set forth under the heading "Certain United States Federal
Income Tax Considerations" in the Final Prospectus, insofar as such
statements purport to summarize certain federal income tax laws of the
United States, constitute a fair summary of the principal U.S. federal
income tax consequences of an investment in the MOPPRS.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Delaware, the State of New York or the United
States, to the extent such counsel deems proper and specifies in such
opinion, upon the opinion of other counsel of good standing whom such
counsel believes to be reliable and who are reasonably satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (c) include any supplements thereto at
the Closing Date.
(d) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, 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 chief financial officer of the Company, dated the
Closing Date, with respect to the matters set forth in (g) below and
to the effect that:
(i) to such person's knowledge, 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
<PAGE>
the Closing Date and the Company has complied in all material
respects with all the agreements and satisfied in all material
respects all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; and
(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 such person's knowledge,
threatened.
(f) At the Execution Time, KPMG Peat Marwick 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 Execution Time, 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 any 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; a reading of the minutes of the meetings of the
stockholders, directors and the executive, audit, compensation
and pension committees of the Company and its 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:
(1) 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 of the Act and the
Exchange Act 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; or 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;
(2) with respect to the period subsequent to the date
of the most recent financial statements (other than any
capsule
<PAGE>
information), audited or unaudited, in or incorporated in
the Regis tration 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
long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
stockholders' equity of the Company or any other changes in
any balance sheet items as the Representatives may
reasonably request 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 Pro spectus to such
specified date there were any decreases, as compared with
the corresponding period in the preceding year or the
preceding quarter in net sales, earnings from operations,
earnings before income taxes or in total or per share
amounts of net earnings of the Company and its subsidiaries
available for common stockholders or any other income
statement items as the Representatives may reasonably
request, 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
(3) 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 Items 1, 2,
6, 7 and 11 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
<PAGE>
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement or the
Final Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, 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 (f) include
any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Closing Date, KPMG Peat Marwick 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) (i) Neither the Company nor any of the Material Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Final
Prospectus any 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 (ii) since the respective dates as of which
information is given in the Final Prospectus there shall not have been
any increase in the long-term debt of the Company and its consolidated
subsidiaries in an amount in excess of $10,000,000 other than
indebtedness incurred to pay obligations under the rate lock
agreements of the Company described in the Final Prospectus or any
change in or affecting the general affairs, financial position,
stockholder's equity or results of operations of the Company and its
subsidiaries, in each case otherwise than as set forth or contemplated
in the Final Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered at
the time of purchase on the terms and in the manner contemplated in
the Final Prospectus.
(h) Subsequent to the Execution Time, there shall not have
occurred any downgrade in the rating of any securities of or
guaranteed by the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g)(2) under
the Act) and no such organization shall have publicly announced that
is has under surveillance or review, with possible negative
implications, its rating of any securities of or guaranteed by the
Company.
<PAGE>
(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.
(k) The Remarketing Agreement shall have been executed and
delivered.
(l) The Company shall have performed such of its obligations
under this Agreement as are to be performed by the terms hereof at or
before the time of purchase.
(m) The Company agrees to such other conditions as may be set
forth in Schedule I hereto.
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 Repre sentatives and such cancelation shall be without
liability of any party to any other party. Notice of such cancelation 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 office 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 consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied or 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 through the Representatives upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of one Underwriters' counsel) approved by the Representatives
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 agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities (including the
reasonable cost of investigation), joint or several, to which each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise,
<PAGE>
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any 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 or post-effective 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 such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) 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 Representa tives
expressly and specifically for inclusion therein or 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
and (ii) such indemnity with respect to any untrue statement or omission of
a material fact made in the Basic Prospectus or any Preliminary Final
Prospectus, or in any amendment thereof or supplement thereto, shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities which are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final
Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained
in such Basic Prospectus or Preliminary Final Prospectus, or in such
amendment thereof or supplement thereto, was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf
of such Underwriter through the Representatives expressly and specifically
for inclusion in the documents referred to in the foregoing indemnity, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
will not, in any event, relieve the indemnifying party from
<PAGE>
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defen dants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party; provided, however, that
in any event the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) in any one
action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
representing the indemnified parties who are parties to such action or
actions). An indemnifying party will not, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or
proceeding. An indemnifying party shall not be liable under this Section 7
to any indemnified party regarding any settlement or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent is consented to by such indemnifying
party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company and by the Underwriters from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
<PAGE>
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Final Prospectus. 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 or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), 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. For purposes of this Section 7, each person who controls
an Underwriter within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d). The obligations of the Underwriters
shall be several and not joint.
8. Default by an Underwriter. If any one or more Underwriters shall
fail on the Closing Date to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and
such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names
in Schedule II hereto bears to the aggregate principal amount of Securities
set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 8, the Closing Date shall be postponed for such period, not
exceeding five business days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any
<PAGE>
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
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
(i) there shall have occurred a material suspension or limitation in
trading in securities generally on the New York Stock Exchange, (ii) there
shall have occurred a material suspension or limitation in trading in the
Company's securities on the New York Stock Exchange, (iii) there shall not
have occurred any downgrade in the rating of any securities of or
guaranteed by the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g)(2) under the Act) and
no such organization shall have publicly announced that is has under
surveillance or review, with possible negative implications, its rating of
any securities of or guaranteed by the Company, (iv) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(v) there shall have occurred any materially adverse change in the
financial markets or 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 reasonable 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).
If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancelation of this Agreement.
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 Five Garret Mountain Plaza,
West Paterson, NJ 07424, attention of the Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, and the officers and directors and
controlling persons referred to in Section 7 hereof, and their respective
successors, assigns, executors and administrators. No other person,
partnership, association, or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right or
obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
<PAGE>
14. Business Day. For purposes of this Agreement, "business day" means
any day on which the New York Stock Exchange is open for trading.
15. Miscellaneous. On December 8, 1997, Swiss Bank Corporation, of
which SBC Warburg Dillon Read is an indirect wholly owned subsidiary,
announced its intention to merge with Union Bank of Switzerland. References
in this document to Swiss Bank Corporation include references to its
successor entity following completion of the merger.
References to the parties include references to their successors,
including, without limitation, an entity which assumes the rights and
obligations of the relevant party by operation of the law of the
jurisdiction of incorporation or domicile of such party.
16. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
<PAGE>
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,
CYTEC INDUSTRIES INC.,
By: /s/ D. D. Fry
---------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and
accepted as of the date
specified in Schedule I
hereto.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Salomon Brothers Inc
SBC Warburg Dillon Read Inc.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Paul Collins
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
For themselves and the other
several Underwriters, if
any, named in Schedule II to
the foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated May 6, 1998
Registration Statement No. 333-3808
Representative(s): Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Morgan Stanley & Co. Incorporated, Salomon Brothers Inc and SBC Warburg
Dillon Read Inc.
Title, Purchase Price and Description of Securities:
Title: 6.846% MandatOry Par Put Remarketed
SecuritiesSM ("MOPPRSSM") due May 11,
2025.
Principal Amount: $120,000,000.
Indenture: Indenture dated as of March 15, 1998
between Cytec Industries Inc. and PNC
Bank, National Association, as Trustee.
Interest Rate: 6.846% per annum to May 11, 2005,
commencing May 11, 1998, payable
semiannually in arrears on the dates
set forth below, to holders of record
on the preceding April 26 and October
27, as the case may be.
Interest Payment Dates: May 11 and November 11.
Remarketing Date: May 11, 2005.
Date of Maturity: May 11, 2025.
Purchase Price (include
accrued interest or
amortization, if any): 103.125%
Sinking Fund Provisions: None.
Redemption Provisions: As specified in the Prospectus
Supplement under the caption headed
"Description of the MOPPRS- Redemption"
filed with the Commission on May 6,
1998.
Authorized Denominations: $1,000 and integral multiples thereof.
<PAGE>
Defeasance Provisions: The MOPPRS may not be defeased,
purchased or otherwise acquired by the
Company or its subsidiaries or
affiliates other than (i) at any time
prior to the Remarketing Dealer's (as
defined in the Remarketing Agreement)
election to remarket the MOPPRS, in
accordance with Sections 11(b), 11(d)
and 11(e) of the Remarketing Agreement
to be dated May 11, 1998 between the
Company and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the
"Remarketing Agreement"), and (ii) at
any time after the Remarketing Dealer's
election to remarket the MOPPRS on the
Notification Date pursuant to Section
4(g) or 4(h) of the Remarketing
Agreement.
Other Provisions: The MOPPRS are Book-Entry Securities.
The MOPPRS are subject to the
Remarketing Agreement.
Closing Date, Time and Location: May 11, 1998, 9:30 a.m., at the offices
of Cravath, Swaine & Moore, Worldwide
Plaza, 825 Eighth Avenue, New York, NY.
Method of Payment for
Underwriters' Securities: Wire transfer in same-day funds.
Type of Offering: Delayed Offering.
Delayed Delivery Arrangements: None.
Additional provisions pursuant to Section 4(k): None.
Additional opinions pursuant to Section 5(b)(xiii) or 5(c)(ix): None.
Modification of items to be covered by the letter from KPMG Peat Marwick LLP
delivered pursuant to Section 5(f) at the Execution Time: None.
Additional conditions pursuant to Section 5(l): None.
<PAGE>
SCHEDULE II
Principal Amount of
Mandatory Par Put Remarketed SecuritiesSM
due May 11, 2025
Underwriter to be Purchased
Merrill Lynch, Pierce, Fenner & Smith,.. $ 62,400,000
Incorporated
Morgan Stanley & Co. Incorporated ...... $ 19,200,000
Salomon Brothers Inc ................... $ 19,200,000
SBC Warburg Dillon Read Inc. ........... $ 19,200,000
-------------
Total ............................. $120,000,000
============
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, NY 10281
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Salomon Brothers Inc
Seven World Trade Center
30th Floor
New York, NY 10048
SBC Warburg Dillon Read Inc.
535 Madison Avenue
New York, NY 10022
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Cytec Industries
Inc. (the "Company"), and the Company agrees to sell to the undersigned, on
May [ ], 1998, (the "Delivery Date"), $ principal amount of the Company's
6.846% MandatOry Par Put Remarketed Securities due May 11, 2025 (the
"Securities") offered by the Company's Prospectus dated April 8, 1997, and
related Prospectus Supplement dated May 6, 1998, 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
<PAGE>
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 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 (1) 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
(2) 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
<PAGE>
binding contract between the Company and the undersigned, as of the date
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:
.........................................
(Address)
Accepted:
CYTEC INDUSTRIES INC.,
By
.........................................
Name:
Title:
FORM OF REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of May [__], 1998 (the "Remarketing
Agreement"), between Cytec Industries Inc., a Delaware corporation (the
"Company"), and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch" and, in its capacity as the remarketing dealer hereunder,
the "Remarketing Dealer").
WHEREAS, the Company has issued $120,000,000 aggregate principal
amount of its [ ]% MandatOry Par Put Remarketed Securities SM due 2025 (the
"MOPPRS SM") pursuant to an indenture, dated as of March 15, 1998 (the
"Indenture"), between the Company and PNC Bank, National Association, as
trustee (the "Trustee"); and
WHEREAS, the MOPPRS are being sold initially pursuant to an
underwriting agreement, dated May 6, 1998 (the "Purchase Agreement"),
between the Company and the Underwriters named in Schedule I thereto; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-3808) under the Securities Act of 1933, as amended (the "1933 Act"), in
connection with the offering of Debt Securities, including the MOPPRS,
which registration statement was declared effective by order of the
Commission on April 8, 1998, and has filed such amendments thereto and such
amended prospectuses as may have been required to the date hereof, and will
file such additional amendments thereto and such additional amended
prospectuses as may hereafter be required, and the Company has filed a
registration statement pursuant to Rule 462(b) under the 1933 Act which
registration statement became effective upon filing with the Commission;
and
WHEREAS, Merrill Lynch is prepared to act as the Remarketing Dealer
with respect to the remarketing of the MOPPRS on May [__], 2005 (the
"Remarketing Date") pursuant to the terms of, but subject to the conditions
set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture
(including the form of the MOPPRS).
Section 2. Representations and Warranties. (a) The Company represents
and warrants to the Remarketing Dealer as of the date hereof, the
Notification Date (as defined below), the Determination Date (as defined
below) and the Remarketing Date (each such date being hereinafter referred
to as a "Representation Date"), that (i) during the 12 months immediately
preceding the applicable Representation Date, it has made all the filings
with the Commission that it is required to make under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder (the "1934 Act Regulations") (collectively, the
"1934 Act Documents"), (ii) each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and 1934 Act Regulations,
and each 1934 Act Document did not at the time of filing with the
Commission, and as of each Representation Date, as modified or superseded
by any subsequently filed 1934 Act Document on or prior to such
Representation Date, will not, include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (iii) the
applicable Remarketing Materials (as defined herein), as of each
<PAGE>
2
Representation Date after the date hereof, as modified or superseded by any
subsequently filed 1934 Act Document on or prior to such Representation
Date (or, if applicable, by any document filed pursuant to the 1933 Act and
the rules and regulations thereunder (the "1933 Act Regulations")), will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) The Company further represents and warrants to the Remarketing
Dealer as of each Representation Date as follows:
(i) KPMG Peat Marwick LLP (and any successor accountants), who
have certified certain financial statements of the Company and its
subsidiaries, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(ii) The consolidated financial statements included or
incorporated by reference in the 1934 Act Documents, together with the
related schedules and notes, present fairly the consolidated financial
position of the Company and its subsidiaries as of the dates indicated
and the consolidated results of operations and the consolidated cash
flows of the Company and its subsidiaries for the periods specified;
such financial statements, except as described therein, have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved. The pro
forma financial statements and the related notes thereto, if any,
included or incorporated by reference in the 1934 Act Documents
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(iii) Except as described in the 1934 Act Documents, since the
respective dates as of which information is given in the 1934 Act
Documents, there has not been (i) any increase in the long-term debt
of the Company and its consolidated subsidiaries in an amount in
excess of $10,000,000, other than indebtedness incurred to pay
obligations under the rate lock agreements of the Company described in
the 1934 Act Documents or (ii) except as set forth or contemplated in
the 1934 Act Documents, any material adverse change, or any
development or event likely to result in a prospective material
adverse change, in or affecting the general affairs, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(iv) The Company and each "significant subsidiary" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X) (each, a
"Material Subsidiary" and, collectively, the "Material Subsidiaries")
have been duly incorporated and are validly existing as corporations
in good standing under the laws of the State of Delaware, with
corporate power and authority to own their properties and conduct
their business as described in the 1934 Act Documents and to execute
and deliver this Agreement, and have been duly qualified as foreign
corporations for the transaction of business and are in good standing
under the laws of each other jurisdiction in which they own or lease
properties or conduct any business so as to require such
qualification, except where failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect.
(v) The Company and each of its Material Subsidiaries have good
title to all manufacturing plants or facilities (together with the
land upon which it is erected and fixtures comprising a part thereof)
located in the United Sates of America (excluding
<PAGE>
3
territories and possessions) the net book value (as defined in the
Indenture) of which exceeds 1.5% of Consolidated Net Tangible Assets
(as defined in the Indenture), except any such plant or facility which
is a pollution control or other facility financed by obligations
issued by a state or local governmental unit and described in Sections
141(a), 142(a)(5), 142(a)(6), 142(10) or 144(a) of the Internal
Revenue Code of 1986, as amended (or any successor provision thereof),
or which in the opinion of the Board of Directors of the Company is
not of material importance to the total business conducted by the
Company and its subsidiaries as a whole (each, a "Principal Property"
and collectively, the "Principal Properties"), in each case free and
clear of all liens, encumbrances and defects except such as are
described in the 1934 Act Documents or such as do not materially
affect the value of such Principal Property and do not interfere with
the use made of such Principal Property by the Company and its
Material Subsidiaries, except where such impairment or interference
would not reasonably be expected to have a Material Adverse Effect;
and the Principal Properties held under lease by the Company and the
Material 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 of such Principal Property by the Company
and the Material Subsidiaries except where such interference would not
reasonably be expected to have a Material Adverse Effect.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and is a legal, valid and
binding agreement of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(viii) The MOPPRS, when issued in accordance with this Agreement
and the Indenture, will have been duly authorized by the Company and
when executed and delivered by the Company will constitute legal,
valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and general principles of
equity.
(ix) Neither the Company nor any of the Material Subsidiaries is
(i) in violation of its Certificate of Incorporation or By-laws or
(ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, where such default would be reasonably likely to have a
Material Adverse Effect; and the execution, delivery and performance
of this Agreement and the Indenture, the issuance and sale of the
MOPPRS and the consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument of which the Company or any of the Material
Subsidiaries is a party or by which the Company or any of the Material
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Material Subsidiaries is subject, except where
such breach or violation would not reasonably be expected to have a
Material Adverse Effect, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or By-laws of
the Company or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of the Material
<PAGE>
4
Subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the MOPPRS or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Act of the MOPPRS, qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the MOPPRS by the Underwriters.
(x) Other than as set forth or contemplated in the 1934 Act
Documents, there are no legal or governmental proceedings pending to
which the Company or any of the Material Subsidiaries is a party or of
which any property of the Company or any Material Subsidiaries is the
subject which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect; and, to the best of the
Company's knowledge, there are no proceedings threatened or
contemplated by governmental authorities or threatened by others which
would reasonably be expected to have a Material Adverse Effect.
(xi) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection
with the remarketing of the MOPPRS hereunder or the consummation of
the transactions contemplated by this Agreement or for the due
execution, delivery or performance of the Indenture by the Company,
except such as have been already obtained, and except as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities or Blue Sky laws and except for the qualification of the
Indenture under the Trust Indenture Act.
(xii) The Company is not and, after giving effect to the offering
and sale of the MOPPRS, will not be an "investment company" or any
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(xiii) The MOPPRS are rated BBB by Standard & Poors Ratings
Services Group and Baa2 by Moody's Investors Service, Inc. or such
other rating as to which the Company shall have most recently notified
the Remarketing Dealer pursuant to Section 3(a) hereof.
(xiv) Other than as set forth or contemplated in the 1934 Act
Documents, each of the Company and the Material Subsidiaries are in
material compliance with all applicable federal, state and local
environmental laws and regulations, including those applicable to
emissions to the environment, waste management and waste disposal
(collectively, "Environmental Laws"), except for such noncompliance as
would not, to the best knowledge of the Company, reasonably be
expected to have a Material Adverse Effect.
(xv) Other than as set forth or contemplated in the 1934 Act
Documents, (i) there is no claim under any Environmental Law,
including common law, pending or, to the best knowledge of the
Company, threatened or contemplated against the Company or the
Material Subsidiaries (an "Environmental Claim") which would
reasonably be expected to have a Material Adverse Effect and (ii) to
the knowledge of the Company, under applicable law, there are no past
or present actions, activities, circumstances, events or incidents,
including releases of any material into the environment, that could
form the basis of any Environmental Claim against the Company or the
Material Subsidiaries which would
<PAGE>
5
reasonably be expected to have a Material Adverse Effect.
References in the foregoing representations and warranties to the 1934
Act Documents shall be deemed to refer to the Registration Statement (as
defined in Section 3(b) below) and Prospectus (as defined in Section 3(b)
below), in each case including the documents incorporated by reference
therein, if such are required pursuant to Section 3(e) hereof.
(c) Additional Certifications. Any certificate signed by any director
or officer of the Company and delivered to the Remarketing Dealer or to
counsel for the Remarketing Dealer in connection with the remarketing of
the MOPPRS shall be deemed a representation and warranty by the Company to
the Remarketing Dealer as to the matters covered thereby.
Section 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer as follows:
(a) During the twelve-month period immediately preceding the
Remarketing Date, the Company will provide prompt notice by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), to the Remarketing Dealer of (i) any notification or
announcement by a "nationally recognized statistical rating organization"
(as defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act) with regard to the ratings of any securities of the Company,
including, without limitation, notification or announcement of a downgrade
in or withdrawal of the rating of any security of the Company or
notification or announcement of the placement of any rating of any
securities of the Company under surveillance or review, including placement
on CreditWatch or on Watch List with negative implications, or (ii) the
occurrence at any time of any event set forth in Section 8(b) of this
Agreement.
(b) During the twelve-month period immediately preceding the
Remarketing Date, the Company will furnish to the Remarketing Dealer:
(i) if required as provided in paragraph (e) below for purposes
of the remarketing, a then currently effective registration statement
under the 1933 Act and a then current prospectus relating to the
MOPPRS to be used by the Remarketing Dealer for remarketing and resale
of the MOPPRS (such registration statement (whether consisting of the
registration statement relating to the initial issuance of the MOPPRS,
or any amendment thereto or a new registration statement) and any
amendments thereto, including any such prospectus (whether consisting
of the prospectus relating to the initial issuance of the MOPPRS or
any amendment or supplement thereto or a new prospectus) relating to
the MOPPRS constituting a part thereof, and all documents incorporated
therein by reference, as from time to time amended or supplemented
pursuant to the 1934 Act, the 1933 Act, or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus,"
respectively, except that if any revised prospectus shall be provided
to the Remarketing Dealer by the Company for use in connection with
the remarketing of the MOPPRS which differs from the Prospectus on
file at the Commission at the time the Registration Statement becomes
effective, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the
Remarketing Dealer for such use);
(ii) each 1934 Act Document filed after the date hereof; and
(iii) in connection with the remarketing of MOPPRS, such other
information as the Remarketing Dealer may reasonably request from time
to time.
The Company agrees to provide the Remarketing Dealer with as many
copies of the
<PAGE>
6
foregoing written materials and other Company approved information as the
Remarketing Dealer may reasonably request for use in connection with the
remarketing of MOPPRS and consents to the use thereof for such purpose.
(c) During the twelve-month period immediately preceding the
Remarketing Date, if, at any time during which the Remarketing Dealer would
be obligated to take any action under this Agreement, any event or
condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the MOPPRS shall occur which could reasonably be
expected to cause any of the reports, documents, materials or information
referred to in paragraph (b) above or any document incorporated therein by
reference (collectively, the "Remarketing Materials") to contain an untrue
statement of a material fact or omit to state a material fact, the Company
shall promptly notify the Remarketing Dealer in writing of the
circumstances and details of such event or condition.
(d) So long as the MOPPRS are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and
the rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the MOPPRS on the Remarketing Date as
freely transferable securities, as contemplated in this Agreement and in
the prospectus relating to the initial issuance of the MOPPRS. In
furtherance of the foregoing, if it shall be necessary, in the opinion of
counsel for the Remarketing Dealer or for the Company, to have a
Registration Statement and a Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act Regulations,
or if at any time when a Prospectus is required by the 1933 Act to be
delivered in connection with remarketing and resales of the MOPPRS, any
event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Remarketing Dealer or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, the
Company, at its expense, will promptly (i) prepare and file with the
Commission such Registration Statement and Prospectus, or such amendment or
supplement as may be necessary to correct such statement or omission as
referred to above or to make the Registration Statement or the Prospectus
comply with such requirements as referred to above, (ii) furnish to the
Remarketing Dealer such number of copies of such Registration Statement and
Prospectus or such amendment, supplement or other document as the
Remarketing Dealer may reasonably request and (iii) furnish to the
Remarketing Dealer an officers' certificate, an opinion (including a
statement as to the absence of material misstatements in or omissions from
the Registration Statement and Prospectus, as amended or supplemented) of
counsel for the Company satisfactory to the Remarketing Dealer and a
"comfort letter" from the Company's independent accountants, in each case
in form and substance satisfactory to the Remarketing Dealer, of the same
tenor as the officers' certificate, opinion and comfort letter,
respectively, delivered pursuant to the Purchase Agreement, but modified to
relate to the Registration Statement and Prospectus as amended or
supplemented to the date thereof.
(f) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall defease, purchase or otherwise acquire, or enter into any
agreement to defease, purchase or otherwise acquire, any of the MOPPRS
prior to the remarketing thereof by the Remarketing Dealer, other than (i)
at any time prior to the Remarketing Dealer's election on the Notification
Date, to remarket the MOPPRS, in accordance with Sections 11(b), 11(d) and
11(e) of this Agreement, and (ii) at any time after the Remarketing
Dealer's election on the Notification Date to remarket the
<PAGE>
7
MOPPRS, pursuant to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company shall (i) use its best efforts to maintain the
MOPPRS in book-entry form with The Depository Trust Company ("DTC") or any
successor thereto and to appoint a successor depositary to the extent
necessary to maintain the MOPPRS in book-entry form, and (ii) waive any
discretionary right it otherwise has under the Indenture to cause the
MOPPRS to be issued in certificated form.
(h) To the extent that any Registration Statement and Prospectus are
required as contemplated in paragraph (e) above, the Company will comply
with covenants of the same tenor as those set forth in the Purchase
Agreement, but modified to relate to the Registration Statement and
Prospectus.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 11
hereof, in accordance with the terms, but subject to the conditions, of
this Agreement, the Company hereby appoints Merrill Lynch, and Merrill
Lynch hereby accepts such appointment, as the exclusive Remarketing Dealer
with respect to $120,000,000 aggregate principal amount of MOPPRS, subject
further to repurchase of the MOPPRS in accordance with clause (g) of this
section or redemption of the MOPPRS in accordance with clause (h) of this
section.
(b) It is expressly understood and agreed by the parties hereto that
the obligations of the Remarketing Dealer hereunder with respect to the
MOPPRS to be remarketed on the Remarketing Date are conditioned on (i) the
issuance and delivery of such MOPPRS pursuant to the terms and conditions
of the Purchase Agreement and (ii) the Remarketing Dealer's election on the
Notification Date to purchase the MOPPRS for remarketing on the Remarketing
Date. It is further expressly understood and agreed by and between the
parties hereto that, if the Remarketing Dealer has elected to remarket the
MOPPRS pursuant to clause (c) below, the Remarketing Dealer shall not be
obligated to set the Interest Rate to Maturity on any MOPPRS, to remarket
any MOPPRS or to perform any of the other duties set forth herein at any
time after the Notification Date if (i) any of the conditions set forth in
clause (a) of Section 8 hereof shall not have been fully and completely met
to the satisfaction of the Remarketing Dealer, or (ii)(A) any of the events
set forth in clause (b)(ii), (v) or (viii) of Section 8 hereof shall have
occurred at any time and (B) any of the events set forth in clause (b)(i),
(iii), (iv), (vi) or (vii) shall have occurred subsequent to the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date, the Remarketing Dealer shall notify the Company and the
Trustee as to whether it elects to purchase the MOPPRS on the Remarketing
Date (the "Notification Date"). If, and only if, the Remarketing Dealer so
elects, the MOPPRS shall be subject to mandatory tender to the Remarketing
Dealer for remarketing on the Remarketing Date, subject to the conditions
described herein.
(d) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Interest Rate to Maturity shall
be determined by the Remarketing Dealer by 3:30 p.m., New York City time,
on the third Business Day preceding the Remarketing Date (the
"Determination Date") to the nearest one hundred-thousandth (0.00001) of
one percent per annum, and will be equal to the sum of ___% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based
on the Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the
<PAGE>
8
Determination Date from the bids quoted by five Reference Corporate Dealers
(as defined below) for the full aggregate principal amount of the MOPPRS at
the Dollar Price, but assuming (i) an issue date equal to the Remarketing
Date, with settlement on such date without accrued interest, (ii) a
maturity date equal to the Stated Maturity Date of the MOPPRS, and (iii) a
stated annual interest rate, payable semiannually on each Interest Payment
Date for the MOPPRS, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall
be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners
and Holders of the MOPPRS, the Company and the Trustee.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities of thirty years.
"Comparable Treasury Price" means, with respect to the Remarketing
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in
each case as a percentage of its principal amount) on the Determination
Date, as set forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500), or (b) if such page (or any successor page) is
not displayed or does not contain such offer prices on the Determination
Date, (i) the average of the Reference Treasury Dealer Quotations for the
Remarketing Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Remarketing Dealer obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Jones Markets Limited (or
such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may
replace Dow Jones Markets Limited.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the
Remarketing Date, on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months), at the Treasury Rate (as defined below).
"Reference Corporate Dealer" means each of the Remarketing Dealer and
four other leading dealers of publicly traded debt securities of the
Company in the City of New York to be chosen by the Company (with the
consent of the Remarketing Dealer, which consent shall not be unreasonably
withheld), and their respective successors.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for
the Comparable Treasury Issues (expressed in each case as a percentage of
its principal amount) quoted to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., New York City time, on the Determination
Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Morgan Stanley & Co.
Incorporated, Salomon Brothers Inc and SBC Warburg Dillon Read Inc. and
their respective successors; provided, however, that if any of the
foregoing or their affiliates shall cease to be a primary U.S. Government
securities dealer in The City of New York (a "Primary Treasury Dealer"),
the Remarketing Dealer shall substitute therefor another Primary Treasury
Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only,
<PAGE>
9
that would be due after the Remarketing Date to and including the Stated
Maturity Date; provided, however, that if the Remarketing Date is not an
Interest Payment Date with respect to the MOPPRS, the amount of the next
succeeding scheduled interest payment thereon, calculated at the Base Rate
only, will be reduced by the amount of interest accrued thereon, calculated
at the Base Rate only, to the Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing Date, the rate
per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable
Treasury Issues (as defined below), assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price (as defined below) for the Remarketing
Date.
(e) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Remarketing Dealer shall notify
the Company, the Trustee and DTC by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 4:00 p.m., New
York City time, on the Determination Date of the Interest Rate to Maturity
applicable to the MOPPRS effective from and including the Remarketing Date.
(f) In the event that the MOPPRS are remarketed as provided herein,
the Remarketing Dealer shall make, or cause the Trustee to make, payment to
the DTC Participant of each tendering Beneficial Owner of MOPPRS subject to
remarketing, by book entry through DTC by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS
that have been purchased for remarketing by the Remarketing Dealer. The
Company shall make, or cause the Trustee to make, payment of interest to
each Beneficial Owner of MOPPRS due on the Remarketing Date by book entry
through DTC by the close of business on the Remarketing Date.
(g) In the event that (i) the Remarketing Dealer for any reason does
not notify the Company of the Interest Rate to Maturity by 4:00 p.m., New
York City time, on the Determination Date, or (ii) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been
appointed on or before the Determination Date, or (iii) the Remarketing
Dealer has terminated this Agreement pursuant to Section 8 or Section 11
hereof at any time after the Remarketing Dealer elects on the Notification
Date to remarket the MOPPRS, or (iv) the Remarketing Dealer for any reason
does not elect, by notice to the Company and the Trustee not later than the
Notification Date to purchase the MOPPRS for remarketing on the Remarketing
Date, or (v) the Remarketing Dealer for any reason does not purchase all
tendered MOPPRS on the Remarketing Date, the Company shall repurchase the
MOPPRS as a whole on the Remarketing Date at a price equal to 100% of the
principal amount of the MOPPRS plus all accrued and unpaid interest, if
any, on the MOPPRS to the Remarketing Date; provided, however, that any
such repurchase of the MOPPRS by the Company pursuant to clause (i) or (v)
above shall not constitute a waiver of any claim for breach of this
Agreement that it may have against the Remarketing Dealer for acts or
omissions occurring prior to such repurchase. In any such case, payment
will be made by the Company through the Trustee to the DTC Participant of
each tendering Beneficial Owner of MOPPRS, by book-entry through DTC by the
close of business on the Remarketing Date against delivery through DTC of
such Beneficial Owner's tendered MOPPRS.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as
provided in clause (c) above, then not later than the Business Day
immediately preceding the Determination Date, the Company shall notify the
Remarketing Dealer and the Trustee if the Company irrevocably elects to
exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price. The "Optional Redemption Price" shall
<PAGE>
10
be the greater of (i) 100% of the principal amount of the MOPPRS and (ii)
the sum of the present values of the Remaining Scheduled Payments thereon,
as determined by the Remarketing Dealer, discounted to the Remarketing Date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate, plus in either case accrued and unpaid
interest from the Remarketing Date on the principal amount being redeemed
to the date of redemption. If the Company elects to redeem the MOPPRS, it
shall pay to the Remarketing Dealer the Optional Redemption Price therefor
in same-day funds by wire transfer to an account designated by the
Remarketing Dealer on the Remarketing Date.
(i) The Remarketing Dealer may, in accordance with the terms of the
Indenture, modify the tender and settlement procedures set forth in the
Indenture in order to facilitate the tender and settlement process.
(j) The tender and settlement procedures described above, including
provisions for payment by purchasers of MOPPRS in the remarketing or for
payment to selling Beneficial Owners of tendered MOPPRS, may be modified to
the extent required by DTC or, if agreed to by the Remarketing Dealer in
accordance with Section 8(b)(viii) of this Agreement, to the extent
required to facilitate the tender and remarketing of MOPPRS in certificated
form, if the book-entry system is no longer available for the MOPPRS at the
time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 11 of this Agreement,
for its services in performing its duties set forth herein, the Remarketing
Dealer will not receive any fees or reimbursement of expenses from the
Company.
Section 6. Resignation of the Remarketing Dealer. The Remarketing
Dealer may resign and be discharged from its duties and obligations
hereunder at any time, such resignation to be effective 10 days after
delivery of a written notice to the Company and the Trustee of such
resignation. The Remarketing Dealer also may resign and be discharged from
its duties and obligations hereunder at any time, such resignation to be
effective immediately, upon termination of this Agreement in accordance
with Section 11(b) hereof. It shall be the sole responsibility of the
Company to appoint a successor Remarketing Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the Company.
(a) Merrill Lynch, when acting as the Remarketing Dealer or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the MOPPRS. Merrill Lynch, as Holder or
Beneficial Owner of the MOPPRS, may exercise any vote or join as a Holder
or Beneficial Owner, as the case may be, in any action which any Holder or
Beneficial Owner of MOPPRS may be entitled to exercise or take pursuant to
the Indenture with like effect as if it did not act in any capacity
hereunder. The Remarketing Dealer, in its capacity either as principal or
agent, may also engage in or have an interest in any financial or other
transaction with the Company as freely as if it did not act in any capacity
hereunder.
(b) The Company may purchase MOPPRS in the remarketing, provided that
the Interest Rate to Maturity established with respect to MOPPRS in the
remarketing is not different from the Interest Rate to Maturity that would
have been established if the Company had not purchased such MOPPRS.
Section 8. Conditions to Remarketing Dealer's Obligations. The
obligations of the Remarketing Dealer under this Agreement have been
undertaken in reliance on, and shall be subject to, (a) the due performance
by the Company of its obligations and agreements as set forth in this
Agreement and the accuracy of the representations and warranties in this
Agreement and any certificate delivered pursuant hereto, and (b) the
further condition that (I) none of the events set
<PAGE>
11
forth in clauses (ii), (v), (viii) below shall have occurred at any time
and (II) none of the events set forth in clauses (i), (iii), (iv), (vi) or
(vii) below shall have occurred subsequent to the Remarketing Dealer's
election on the Notification Date to remarket the MOPPRS:
(i) the rating of any securities of the Company shall have been
down-graded or put under surveillance or review, including being put
on CreditWatch or Watch List with negative implications, or withdrawn
by a nationally recognized statistical rating organization;
(ii) without the prior written consent of the Remarketing Dealer,
the Indenture (including the MOPPRS) shall have been amended in any
manner, or otherwise contain any provision not contained therein as of
the date hereof, that in either case in the judgment of the
Remarketing Dealer materially changes the nature of the MOPPRS or the
remarketing procedures (it being understood that, notwithstanding the
provisions of this clause (ii), the Company shall not be prohibited
from amending the Indenture);
(iii) trading in any securities of the Company shall have been
suspended or materially limited by the Commission or the New York
Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market shall
have been suspended or materially limited, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices
shall have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York
authorities;
(iv) there shall have occurred any material adverse change in the
financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a
prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to
make it, in the judgment of the Remarketing Dealer, impracticable to
remarket the MOPPRS or to enforce contracts for the sale of the
MOPPRS;
(v) an Event of Default (as defined in the Indenture), or any
event which, with the giving of notice or passage of time, or both,
would constitute an Event of Default, with respect to the MOPPRS shall
have occurred and be continuing;
(vi) a material adverse change, or any development or event
(whether taken on its own or in combination with other adverse events
arising out of the same circumstances occurring prior to the
Notification Date) likely to result in a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings
or business affairs of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, shall have occurred;
(vii) if a Prospectus is required under the 1933 Act to be
delivered in connection with the remarketing of the MOPPRS, the
Company shall fail to furnish to the Remarketing Dealer on the
Remarketing Date the officers' certificate, opinion and comfort letter
referred to in Section 3(e) of this Agreement and such other documents
and opinions as counsel for the Remarketing Dealer may reasonably
require for the purpose of enabling such counsel to pass upon the sale
of MOPPRS in the remarketing as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of
any of the representa tions and warranties, or the fulfillment of any
of the conditions, herein contained; or
<PAGE>
12
(viii) the MOPPRS are not maintained in book-entry form with DTC
or any successor thereto; provided, that the Remarketing Dealer, in
its sole discretion and subject to receipt of an opinion of counsel
for the Company reasonably satisfactory to the Remarketing Dealer, may
waive the foregoing condition if in the Remarketing Dealer's judgment
the Indenture and the MOPPRS can be amended, and they are amended, so
as to permit the remarketing of the MOPPRS in certificated form and
otherwise as contemplated herein;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the chief executive officer and of the chief financial
officer of the Company, dated as of the Remarketing Date, to the effect
that (i) the representations and warranties in this Agreement are true and
correct with the same force and effect as though expressly made at and as
of the Remarketing Date, (ii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Remarketing Date and (iii) none of the events specified in the
preceding clause (b) has occurred.
(c) In furtherance of the foregoing, the effectiveness of the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS shall be subject to the condition that the Remarketing Dealer shall
have received a certificate of the chief executive officer and of the chief
financial officer of the Company, dated as of the Notification Date, to the
effect that (i) the Company has, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, provided the Remarketing
Dealer with notice of all events as required under Section 3(a) of this
Agreement, (ii) the representations and warranties in this Agreement are
true and correct at and as of the Notification Date and (iii) the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Notification Date. Such
certificate shall be delivered by the Company to the Remarketing Dealer as
soon as practicable following notification by the Remarketing Dealer to the
Company on the Notification Date of its election to remarket the MOPPRS and
in any event prior to the Determination Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement as
provided in Section 11.
Section 9. Indemnification. (a) The Company agrees to indemnify and
hold harmless the Remarketing Dealer and its officers, directors and
employees and each person, if any, who controls the Remarketing Dealer
within the meaning of Section 20 of the 1934 Act as follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of, (A) the failure to have an
effective Registration Statement under the 1933 Act relating to the
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Dealer with a Prospectus for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in
any of the Remarketing Materials (including any incorporated
documents), or (C) the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading, or (D)
any violation by the Company of, or any failure by the Company to
perform any of its obligations under, this Agreement, or (E) the acts
or omissions of the Remarketing Dealer in connection with its duties
and obligations to determine the Interest Rate to Maturity hereunder
except that are finally judicially determined to be due to its gross
negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or
<PAGE>
13
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever arising out of, or
based upon, any of items (A) through (E) in clause (i) above; provided
that (subject to clause (d) below) such settlement is effected with
the written consent of the Company, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Remarketing Dealer), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever arising out of, or based upon, any
of items (A) through (E) in clause (i) above to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any
losses, liabilities, claims, damages and expenses to the extent arising out
of any untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Remarketing Dealer
expressly for use in the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and each of its officers who signed the Registration
Statement, from and against any loss, liability, claim, damage and expense,
as incurred, but only with respect to untrue statements or omissions made
in the Remarketing Materials in reliance upon and in conformity with
information furnished to the Company in writing by the Remarketing Dealer
expressly for use in such Remarketing Materials. The indemnity agreement in
this paragraph shall extend upon the same terms and conditions to each
person, if any, who controls the Company within the meaning of Section 20
of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable 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 such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to clause (a) above, counsel to
the indemnified parties shall be selected by Merrill Lynch, and, in the
case of parties indemnified pursuant to clause (b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own 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, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 9 or Section 10 hereof (whether or not
the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission or fault, culpability or a failure to act
by or on behalf of any indemnified party.
(d) The indemnity agreements contained in this Section 9 shall remain
operative and in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing
<PAGE>
14
Dealer, and shall survive the termination or cancellation of this Agreement
and the remarketing of any MOPPRS hereunder.
Section 10. Contribution. If the indemnification provided for in
Section 9 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Remarketing Dealer
on the other hand from the remarketing of the MOPPRS pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Remarketing Dealer on the
other hand in connection with the acts, failures to act, statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Remarketing Dealer on the other hand in connection with the remarketing of
the MOPPRS pursuant to this Agreement shall be deemed to be in the same
respective proportions as (i) the aggregate principal amount of the MOPPRS,
and (ii) the aggregate positive difference, if any, between the price at
which the MOPPRS are sold by the Remarketing Dealer in the remarketing and
the price paid by the Remarketing Dealer for the MOPPRS tendered on the
Remarketing Date.
The relative fault of the Company on the one hand and the Remarketing
Dealer on the other hand shall be determined by reference to, among other
things, the responsibility hereunder of the applicable party for any act or
failure to act relating to the losses, liabilities, claims, damages or
expenses incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue statement
of a material fact contained in any of the Remarketing Materials or the
omission or alleged omission to state a material fact therefrom, whether
any such untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Remarketing Dealer and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 10 were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
Section 10. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 10 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing
or defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such act or failure to act or untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10, the Remarketing
Dealer shall not be required to contribute any amount in excess of the
amount by which the total price at which the MOPPRS remarketed by it and
resold to the public were sold to the public exceeds the amount of any
damages which the Remarketing Dealer has otherwise been required to pay by
reason of any act or failure to act for which it is responsible hereunder
or any 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
<PAGE>
15
1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as
the Remarketing Dealer, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
Section 11. Termination of Remarketing Agreement. (a) This Agreement
shall terminate as to the Remarketing Dealer on the effective date of the
resignation of the Remarketing Dealer pursuant to Section 6 hereof or the
repurchase of the MOPPRS by the Company pursuant to Section 4(g) hereof or
the redemption of the MOPPRS by the Company pursuant to Section 4(h)
hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and
the Trustee of its election to do so, at any time on or before the
Remarketing Date, in the event that: (i) any of the conditions referred to
or set forth in Section 8(a) hereof have not been met or satisfied in full,
(ii)(A) any of the events set forth in Section 8(b)(ii), (v) or (viii)
shall have occurred at any time or (B)(I) with respect to any period prior
to the Remarketing Dealer's election on the Notification Date to remarket
the MOPPRS, any of the events set forth in Section 8(b)(i), (iii), (iv),
(vi) and (vii) shall have occurred at any time and (II) with respect to the
period after the Remarketing Dealer's election on the Notification Date to
remarket the MOPPRS, any of the events set forth in Section 8(b)(i), (iii),
(iv), (vi) and (vii) shall have occurred at any time after the Notification
Date, (iii) the Remarketing Dealer determines, in its sole discretion,
after consultation with the Company, that it shall not have received all of
the information, whether or not specifically referenced herein, necessary
to fulfill its obligations under this Agreement or (iv) the Company effects
a legal defeasance or covenant defeasance of the MOPPRS pursuant to
Sections 8.01(b)(i) or 8.01(b)(ii), respectively, of the Indenture.
(c) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party,
except that, in the case of termination pursuant to Section 11(b) of this
Agreement, the Company shall reimburse the Remarketing Dealer for all of
its out-of-pocket expenses, including the reasonable fees and disbursements
of counsel for the Remarketing Dealer, and except further as set forth in
Section 11(e) below. Sections 1, 9, 10, 11(d) and 11(e) shall survive such
termination and remain in full force and effect.
(d) In addition, in connection with any purchase by the Company or any
of its affiliates or subsidiaries of MOPPRS prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, the
Company shall within two Business Days after such purchase notify the
Remarketing Dealer of such purchase, and the obligations of the Remarketing
Dealer to remarket the MOPPRS shall be subject to termination as follows:
(i) in the event that the principal amount of MOPPRS purchased by the
Company is less than $30,000,000, the principal amount of MOPPRS which the
Remarketing Dealer shall be obligated to remarket after its election to
remarket on the Notification Date shall be reduced (hereinafter, a "Partial
Termination") by an amount equal to the principal amount of the MOPPRS
purchased by the Company (giving effect to all prior purchases of MOPPRS by
the Company or any of its affiliates or subsidiaries made in accordance
with this Section 11(d)(i)); and (ii) in the event that the principal
amount of MOPPRS purchased by the Company or any of its affiliates or
subsidiaries, when aggregated with all prior purchases of MOPPRS by the
Company or any of its affiliates or subsidiaries made in accordance with
this Section 11(d), is $30,000,000 or more, the Remarketing Dealer may
terminate all of its obligations
<PAGE>
16
under this Agreement (it being agreed that if the Remarketing Dealer elects
to remarket the MOPPRS pursuant to Section 4(c), the principal amount of
the MOPPRS subject to remarketing shall be equal to the original aggregate
principal amount of MOPPRS minus the cumulative aggregate principal amount
purchased by the Company prior to the Notification Date in accordance with
this Section 11(d)). In the case of clause (i) above, the Partial
Termination shall be deemed to occur automatically and in the case of
clause (ii) above, the Remarketing Dealer shall promptly notify the Company
of its election with respect to termination.
(e) In the case of either (i) termination of this Agreement after the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, pursuant to Section 11(b) (other than Section 11(b)(ii)(B)(I)), or
(ii) termination of this Agreement due to the occurrence, prior to the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, of any event set forth in Section 8(b)(ii), (v) or (viii) or
Section 11(b)(iv), or (iii) termination or Partial Termination of this
Agreement pursuant to Section 11(d) due to the occurrence, prior to the
Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, of a repurchase of MOPPRS by the Company, the Company shall
immediately following the Call Price Determination Date (as defined below)
pay the Remarketing Dealer, in same-day funds by wire transfer to an
account designated by the Remarketing Dealer, the fair market value,
calculated as set forth below, of the Remarketing Dealer's right to
purchase and remarket the original aggregate principal amount (or, in the
event of a Partial Termination pursuant to Section 11(d), such aggregate
principal amount purchased by the Company or any of its affiliates or
subsidiaries) of the MOPPRS pursuant to this Agreement (the "Call Price").
In the case of a Partial Termination, the Call Price shall be payable
automatically without any request from the Remarketing Dealer; in all other
cases, the Call Price shall be payable upon the request of the Remarketing
Dealer.
In the case of termination of this Agreement pursuant to Section 11(b)
after the Remarketing Dealer elects on the Notification Date to remarket
the MOPPRS, the Call Price shall be equal to the excess of (i) the Dollar
Price of the MOPPRS determined as provided in Section 4 over (ii) the
aggregate principal amount of the MOPPRS.
In the case of termination of this Agreement due to the occurrence,
prior to the Remarketing Dealer's election on the Notification Date to
remarket the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or
(viii) or Section 11(b)(iv) or 11(d), the Call Price shall be determined in
good faith by the Remarketing Dealer in the following manner. The
Remarketing Dealer shall select five reference market dealers reasonably
satisfactory to the Company. The Remarketing Dealer shall request each
reference market dealer to provide a quotation, as of the same time and
date, of the value of the Call Price, determined on a commercially
reasonable basis by reference, among other factors, to the formulation
described in the preceding paragraph. The Call Price shall be equal to the
average of the three quotations remaining after disregarding the highest
and lowest of such quotations. If fewer than five quotations are obtained,
the average of the quotations obtained shall be used.
The Remarketing Dealer shall determine the applicable Call Price on
the Business Day immediately following the date of termination or
notification of the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 8(b)(ii), (v) or (viii), as the case may be, or as soon as
practicable thereafter (the "Call Price Determination Date"). The
Remarketing Dealer shall promptly notify the Company of the Call Price
Determination Date and the Call Price by telephone, confirmed in writing
(which may include facsimile or other electronic transmission). The Call
Price, absent manifest error, shall be binding and conclusive upon the
parties hereto.
(f) This Agreement shall not be subject to termination by the Company.
<PAGE>
17
Section 12. Remarketing Dealer' Performance; Duty of Care. The duties
and obligations of the Remarketing Dealer shall be determined solely by the
express provisions of this Agreement and the Indenture. No implied
covenants or obligations of or against the Remarketing Dealer shall be read
into this Agreement or the Indenture. In the absence of bad faith on the
part of the Remarketing Dealer, the Remarketing Dealer may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement and the Indenture, as to the truth of the
statements expressed in any of such documents. The Remarketing Dealer shall
be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party
or parties. The Remarketing Dealer shall incur no liability hereunder to
any Beneficial Owner or Holder of MOPPRS in its individual capacity or as
Remarketing Dealer for any action or failure to act in connection with the
remarketing or otherwise. The Remarketing Dealer shall incur no liability
to the Company with respect to calculation of the Interest Rate to
Maturity, except as a result of gross negligence or willful misconduct on
its part.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full
force and effect from the date hereof until the earlier of the first day
thereafter on which no MOPPRS are outstanding or the completion of the
remarketing of the MOPPRS. Regardless of any termination of this Agreement
pursuant to any of the provisions hereof, the obligations of the Company
pursuant to Sections 9, 10 and 11 hereof shall remain operative and in full
force and effect until fully satisfied.
Section 15. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person
without the prior written consent of the Remarketing Dealer. The rights and
obligations of the Remarketing Dealer hereunder may not be assigned or
delegated to any other person without the prior written consent of the
Company; provided, however, that no consent shall be required in connection
with any such assignment by the Remarketing Dealer to an affiliate. This
Agreement shall inure to the benefit of and be binding upon the Company and
the Remarketing Dealer and their respective successors and assigns, and
will not confer any benefit upon any other person, partnership, association
or corporation other than persons, if any, controlling the Remarketing
Dealer within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, or any indemnified party to the extent provided in Section 9
hereof, or any person entitled to contribution to the extent provided in
Section 10 hereof. The terms "successors" and "assigns" shall not include
any purchaser of any MOPPRS merely because of such purchase.
Section 16. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed
that such section headings are not a part of this Agreement and will not be
used in the interpretation of any provisions of this Agreement.
Section 17. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any constitution, statute, rule
or public policy or for any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case, circumstance or jurisdiction, or of
rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatsoever.
<PAGE>
18
Section 18. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
Section 19. Amendments. This Agreement may be amended by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended is not inconsistent with the Indenture in effect as of
the date of any such amendment.
Section 20. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or
pursuant hereto shall be made in writing (which may include facsimile or
other electronic transmission) and shall be deemed to have been validly
given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:
(a) to the Company:
Cytec Industries Inc.
Five Garret Mountain Plaza
West Paterson, NJ 07424
Attention: Secretary
Facsimile No.: (973) 357-3058
(b) to Merrill Lynch:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1307
Attention: Swaps Option Desk
Facsimile No.: (212) 449-8920
With a copy to: Scott Primrose/Transaction Management Group
Facsimile No.: (212) 449-2234
or to such other address as the Company or the Remarketing Dealer shall
specify in writing.
<PAGE>
19
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this Remarketing Agreement to be executed in its name and on its
behalf by one of its duly authorized officers as of the date first above
written.
CYTEC INDUSTRIES INC.
By
------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By
------------------------------
Authorized Signatory
