Exhibit 10.2
9,638,554 Shares
Photronics, Inc.
Common Stock (Par Value $0.01 Per
Share)
UNDERWRITING
AGREEMENT
September 10, 2009
September 10, 2009
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Photronics, Inc., a Connecticut
corporation (the “ Company ”), proposes to issue
and sell to the several underwriters named in Schedule I hereto
(the “ Underwriters ”), for whom you are acting
as manager (the “ Manager ”) 9,638,554 shares of
its common stock (par value $0.01 per share), (the “ Firm
Shares ”). The Company also proposes to issue and sell to
the several Underwriters up to an additional 1,445,783 shares of
its common stock (par value $0.01 per share) (the “
Additional Shares ”) if and to the extent that you, as
the Manager of the offering, shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such shares of
common stock granted to the Underwriters in Section 2 hereof.
The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “ Shares .” The
shares of common stock (par value $0.01 per share) of the Company
to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the “ Common
Stock .” Concurrently with the offering of the Shares,
the Company proposes to issue and sell $50,000,000 aggregate
principal amount of its 5.50% Convertible Senior Notes Due 2014
(the “ Convertible Notes ”), and up to an
additional $7,500,000 aggregate principal amount of its Convertible
Notes if the underwriters exercise their option to purchase
additional notes in full. Neither the offering of the Shares nor
the offering of the Convertible Notes is conditioned upon the
successful completion of the other offering.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement (file number 333-160235),
including a prospectus, on Form S-3, relating to securities (the
“ Shelf Securities ”), including the Shares, to
be issued from time to time by the Company and relating to shares
of Common Stock to be sold from time to time by the selling
shareholders named therein. The registration statement as amended
to the date of this Agreement, including the information (if any)
deemed to be part of the registration statement at the time of its
effectiveness pursuant to Rule 430A or Rule 430B under the
Securities Act of 1933, as amended (the “ Securities
Act ”), is hereinafter referred to as the “
Registration Statement ”, and the related prospectus
covering the Shelf Securities dated June 25, 2009 in the form
first used to confirm sales of the Shares (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule
173 under the Securities Act) is hereinafter
referred to as the “ Basic Prospectus .” If the
Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the
Securities Act (the “ Rule 462 Registration Statement
”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462
Registration Statement. The Basic Prospectus, as supplemented by
the prospectus supplement specifically relating to the Shares in
the form first used to confirm sales of the Shares (or in the form
first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities
Act) is hereinafter referred to as the “ Prospectus
,” and the term “ preliminary prospectus ”
means any preliminary form of the Prospectus. For purposes of this
Agreement, “ free writing prospectus ” has the
meaning set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus ” means the Basic Prospectus,
as supplemented by the preliminary prospectus supplement dated
September 9, 2009 relating to the Shares in the form first
made available to the Underwriters to offer the Shares, together
with the free writing prospectuses, if any, each identified in
Schedule II hereto, and “ broadly available road show
” means a “bona fide electronic road show” as
defined in Rule 433(h)(5) under the Securities Act that has been
made available without restriction to any person. As used herein,
the terms “Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,”
“Time of Sale Prospectus” and “Prospectus”
shall include the documents, if any, incorporated by reference
therein as of the date of this Agreement. The terms “
supplement ,” “ amendment ” and
“ amend ” as used herein with respect to the
Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or free writing prospectus
shall include all documents subsequently filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), that are deemed
to be incorporated by reference therein. The “ Applicable
Time ” means 5:30 p.m. New York City Time, on
September 10, 2009.
1. Representations and
Warranties . The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Time of Sale Prospectus or the Prospectus complied
or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, will
not
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contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement as of the date
hereof does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
(iv) the Registration Statement and the Prospectus comply, and
as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder, (v) the Time of
Sale Prospectus does not, and at the time of each sale of the
Shares in connection with the offering when the Prospectus is not
yet available to prospective purchasers and at the Closing Date (as
defined in Section 4), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, (vi) each broadly available road show, if any,
when considered together with the Time of Sale Prospectus, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and (vii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph
do not apply to (A) statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein or (B) that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the “ Trust Indenture Act ”), of the
trustee named therein.
(c) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the state of Connecticut, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Time of Sale Prospectus and is
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction. The Company is not an
“ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities
Act.
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Any free writing prospectus that the
Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in
accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each
free writing prospectus that the Company has filed, or is required
to file, pursuant to Rule 433(d) under the Securities Act or that
was prepared by or behalf of or used or referred to by the Company
complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule II hereto
forming part of the Time of Sale Prospectus, and electronic road
shows, if any, each furnished to you before first use, the Company
has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing
prospectus.
(d) Each significant subsidiary of
the Company within the meaning of Rule 1-02(w) of Regulation S-X
under the Securities Act (each a “ Significant
Subsidiary ”, collectively the “ Significant
Subsidiaries ”) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, and has the power and authority
(corporate and other) to own its properties and conduct its
business as described in the Time of Sale Prospectus and is duly
qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified
in any such jurisdiction.
(e) This Agreement has been duly
authorized, executed and delivered by the Company.
(f) The Company has an authorized
capitalization as set forth in the Time of Sale Prospectus and the
Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of
capital stock of each wholly-owned subsidiary of the Company, and
all of the shares of capital stock of each other subsidiary that
are owned by the Company, have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for
directors’ qualifying shares and except as set forth in the
Time of Sale Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims, except in the case of any shares pledged pursuant to the
Credit Agreement, dated as of June 6, 2007, as amended, among
the Company, the foreign subsidiary borrowers party
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thereto, the lenders party thereto
and JPMorgan Chase Bank, National Association, as administrative
agent, as amended (the “ Credit Agreement ”), or
the Loan Agreement dated as of June 8, 2009, as amended, among
the Company, the lenders party thereto and JPMorgan Chase Bank,
National Association as administrative agent and collateral agent
(the “ Loan Agreement ”).
(g) The authorized capital stock of
the Company conforms as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the
Prospectus.
(h) The Shares have been duly and
validly authorized and, when issued and delivered in accordance
with the provisions of this Agreement, will be duly and validly
issued, fully paid and non-assessable, and the issuance of the
Shares will not be subject to any preemptive or similar
rights.
(i) The issue and sale of the Shares
and the compliance by the Company with all of the provisions of
this Agreement and the consummation of the transactions herein
contemplated will not materially conflict with or result in a
material breach or violation of any of the terms or provisions of,
or constitute a material default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any material violation of any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its 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 Shares by the Company or the consummation by the Company of the
transactions contemplated by this Agreement, except (i) to the
extent the failure to obtain such consent, approval, authorization,
order, registration or qualification would not materially adversely
affect the ability of the Company to consummate the transactions
contemplated by this Agreement, or (ii) such as have been
obtained or made or such as may be required under state securities
or Blue Sky laws in connection with the offer and sale of the
Shares by the Underwriters.
(j) Neither the Company nor any of
its Significant Subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Time of Sale Prospectus any
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material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Time of Sale Prospectus; and, since the date
as of which information is given in the Time of Sale Prospectus,
there has not been any material change in the capital stock or
long-term debt of the Company or any of its Significant
Subsidiaries or any material adverse change, except for the sale of
the Shares and the sale by the Company of the Convertible Notes or
any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole.
(k) The Company and its subsidiaries
have good and marketable title in fee simple to all material real
property and good and marketable title to all material personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects, except such as are described in the Time
of Sale Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries.
(l) There are no legal or
governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any
of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale
Prospectus and proceedings that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Time of Sale Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are
not so described; and there are no statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as
required.
(m) Each preliminary prospectus
filed as part of the registration statement as originally filed or
as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
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(n) The Company is not, and after
giving effect to the offering and sale of the Shares, 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.
(o) The Company and its Significant
Subsidiaries and, to the Company’s knowledge, its other
subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment,
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole.
(p) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement, except the Registration Rights Agreement dated as of
May 15, 2009 (the “ Registration Rights Agreement
”) among the Company and the Holders named
therein.
(q) There is and has been no failure
on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply in all material
respects with any applicable provision of the Sarbanes-Oxley Act of
2002, as amended, and the rules and regulations promulgated in
connection therewith, including Section 402 related to loans
and Sections 302 and 906 related to certifications.
(r) Neither the Company nor any of
the Significant Subsidiaries or affiliates of the Company, nor, any
director, officer, employee, nor, to the Company’s knowledge,
any agent or representative of the Company nor any director,
officer, employee, agent or representative of the Significant
Subsidiaries or the Company’s affiliates,
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has taken or will take any action in
furtherance of an offer, payment, promise to pay, or authorization
or approval of the payment or giving of money, property, gifts or
anything else of value, directly or indirectly, to any
“government official” (including any officer or
employee of a government or government-owned or controlled entity
or of a public international organization, or any person acting in
an official capacity for or on behalf of any of the foregoing, or
any political party or party official or candidate for political
office) to influence official action or secure an improper
advantage; and the Company and the Significant Subsidiaries and, to
the knowledge of the Company, its affiliates, have conducted their
businesses in compliance with applicable anti-corruption laws and
have instituted and maintain and will continue to maintain policies
and procedures designed to promote and achieve compliance with such
laws and with the representation and warranty contained
herein.
(s) The operations of the Company
and the Significant Subsidiaries are in material compliance with
all applicable financial recordkeeping and reporting requirements,
including those of the Bank Secrecy Act, as amended by Title III of
the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT Act), and the applicable anti-money laundering statutes of
jurisdictions where the Company and the Significant Subsidiaries
conduct business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Anti-Money Laundering Laws ”), and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of the Significant Subsidiaries with respect to the
Anti-Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(t) (i) Neither the Company nor any
of the Significant Subsidiaries (collectively, the “
Entity ”), nor, any director, officer or, to the
knowledge of the Company, any employee, agent, affiliate or
representative of the Company, nor, to the knowledge of the
Company, any director, officer, employee, agent, affiliate or
representative of the Significant Subsidiaries, is an individual or
entity (“ Person ”) that is, or is owned or
controlled by a Person that is:
(A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control (“ OFAC ”) or
the United Nations Security Council (“ UNSC ”)
(collectively, “ Sanctions ”), nor
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(B) located, organized or resident
in a country or territory that is the subject of Sanctions
(including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria).
(ii) The Entity represents and
covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other Person:
(A) to fund or facilitate any
activities or business of or with any Person or in any country or
territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or
(B) in any other manner that will
result in a violation of Sanctions by any Person (including any
Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and
covenants that, for the past 3 years, it has not knowingly engaged
in, is not now knowingly engaged in, and will not engage in, any
dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
2. Agreements to Sell and
Purchase . The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly,
to purchase from the Company the respective number of Firm Shares
set forth in Schedule I hereto opposite its name at $3.92694 a
share (the “ Purchase Price ”).
On the basis of the representations
and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to sell to the
Underwriters the Additional Shares, and the Underwriters shall have
the right to purchase, severally and not jointly, up to 1,445,783
Additional Shares at the Purchase Price. You may exercise this
right on behalf of the Underwriters in whole or from time to time
in part by giving written notice not later than 30 days after the
date of this Agreement. Any exercise notice shall specify the
number of Additional Shares to be purchased by the Underwriters and
the date on which such shares are to be purchased. Each purchase
date must be at least one business day after the written notice is
given and may not be earlier than the closing date for the Firm
Shares nor later than ten business days after the date of such
notice.
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Additional Shares may be purchased as provided
in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm
Shares. On each day, if any, that Additional Shares are to be
purchased (an “ Option Closing Date ”), each
Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) that bears the
same proportion to the total number of Additional Shares to be
purchased on such Option Closing Date as the number of Firm Shares
set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that,
without the prior written consent of the Manager, it will not,
during the period ending 90 days after the date of the Prospectus,
(i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement
under the Securities Act with respect to any of the foregoing or
(ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the
sale of the Shares under this Agreement, (B) the issuance or
sale of Common Stock or the grant of options to purchase Common
Stock by the Company in connection with employee benefit plans as
in effect at the date of the Prospectus, (C) the Convertible
Notes or any shares of Common Stock issuable upon conversion of the
Convertible Notes, (D) the filing of a registration statement
under the Registration Rights Agreement, (E) the issuance of
warrants to purchase up to 750,000 shares of Common Stock or the
Common Stock issuable upon exercise of the warrants in connection
with a technology alliance or (F) the issuance by the Company
of any shares of common stock upon the exercise of an option or
warrant, or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised.
Notwithstanding the foregoing, if
(1) during the last 17 days of the 90-day restricted period,
the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to
the expiration of the 90-day restricted period, the Company
announces that it will release earnings results or becomes aware
that material news or a material event will occur during the 16-day
period beginning on the last day of the 90-day restricted period,
the restrictions imposed by this paragraph shall continue to apply
until the expiration of the 18-day period beginning on the issuance
of the earnings release or the occurrence of the material news or
material event, as applicable.
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3. Terms of Public Offering .
The Company is advised by you that the Underwriters propose to make
a public offering of their respective portions of the Firm Shares
as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is
further advised by you that the Shares are to be offered to the
public upon the terms set forth in the Prospectus.
4. Payment and Delivery .
Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 a.m. New York City time, on
September 16, 2009, or at such other time on the same or such
other date, not later than September 23, 2009, as the Manager
and the Company agree upon in writing. The time and date of such
payment are hereinafter referred to as the “ Closing
Date .”
Payment for any Additional Shares
shall be made to the Company in Federal or other funds immediately
available in New York City against delivery of such Additional
Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 2 or at such other
time on the same or on such other date, in any event not later than
ten business days after the date of such notice, as shall be
designated in writing by you.
The Firm Shares and Additional
Shares shall be registered in such names and in such denominations
as you shall request in writing not later than one full business
day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. The Firm Shares and Additional Shares
shall be delivered to you on the Closing Date or an Option Closing
Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection
with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the
Underwriters’ Obligations . The obligations of the
Company to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares
on the Closing Date are subject to the following conditions:
(i) the Registration Statement shall have become effective,
and the Underwriters shall have received notice thereof, not later
than 5:00 p.m., New York City time, on the date hereof;
(ii) no order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceeding for such purpose
shall be pending before or, to the Company’s knowledge,
threatened by the Commission; and (iii) the Prospectus shall
have been timely filed with the Commission under the Securities
Act.
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The several obligations of the
Underwriters are subject to the following further
conditions:
(a) Subsequent to the execution and
delivery of this Agreement and prior to the Closing
Date:
(i) there shall not have occurred
any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change,
in the rating accorded any of the Company’s securities by any
“nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred
any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus as of the
date of this Agreement that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in
the Time of Sale Prospectus.
(b) The Underwriters shall have
received on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Company, to the effect
set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date, and that the
Company has complied in all material respects with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering
such certificate may rely upon the best of his or her knowledge as
to proceedings threatened.
(c) The Underwriters shall have
received on the Closing Date an opinion of Shearman &
Sterling LLP, New York counsel for the Company, dated the Closing
Date, to the effect that:
(i) the statements in the Time of
Sale Prospectus and the Prospectus under the caption
“United
