Exhibit 1.1
CLEAN
HARBORS, INC.
Common Stock
Underwriting
Agreement
April 23,
2008
Goldman,
Sachs & Co.,
As representative of
the several Underwriters
named in Schedule I
hereto
85 Broad Street
New York, New York 10004
Ladies and
Gentlemen:
Clean
Harbors, Inc., a Massachusetts corporation (the
“Company”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the “Underwriters”) an
aggregate of 2,500,000 shares (the “Firm Securities”),
and, at the election of the Underwriters, the Company proposes,
subject to the terms and conditions stated herein, to issue and to
sell to the Underwriters up to 375,000 additional shares (the
“Optional Securities” and, together with the Firm
Securities, the “Securities”), of common stock, $0.01
par value per share (“Stock”), of the
Company.
1.
The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a)
An “automatic shelf
registration statement” as defined under Rule 405 under
the Securities Act of 1933, as amended (the “Act”), on
Form S-3 (File No. 333-150296) in respect of the
Securities has been filed with the Securities and Exchange
Commission (the “Commission”) not earlier than three
years prior to the date hereof; such registration statement, and
any post-effective amendment thereto, became effective on filing;
and no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission,
and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act has been
received by the Company (the base prospectus filed as part of such
registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Securities filed
with the Commission pursuant to Rule 424(b) under the Act
is hereinafter called a “Preliminary Prospectus”; the
various parts of such
registration statement, including all exhibits
thereto but excluding Form T-1 and including any prospectus
supplement relating to the Securities that is filed with the
Commission and deemed by virtue of Rule 430B to be part of
such registration statement, each as amended at the time such part
of the registration statement became effective, are hereinafter
collectively called the “Registration Statement”; the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time (as defined in Section 1(c) hereof),
is hereinafter called the “Pricing Prospectus”; the
form of the final prospectus relating to the Securities filed with
the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof is hereinafter called
the “Prospectus”; any reference herein to the Basic
Prospectus, the Pricing Prospectus, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act, as of the date of such prospectus; any
reference to any amendment or supplement to the Basic Prospectus,
any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any post-effective amendment to the
Registration Statement, any prospectus supplement relating to the
Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and incorporated therein, in each case
after the date of the Basic Prospectus, such Preliminary
Prospectus, or the Prospectus, as the case may be; any reference to
any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company on
Form 10-K filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing
prospectus” as defined in Rule 433 under the Act
relating to the Securities is hereinafter called an “Issuer
Free Writing Prospectus”);
(b)
No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder, and did
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use
therein;
(c)
For the purposes of this
Agreement, the “Applicable Time” is 5:00pm (Eastern
time) on the date of this Agreement. The Pricing Prospectus
when taken together with the price to the public and the number of
Firm Securities to be set forth on the cover of the Prospectus, as
of the Applicable Time, did not include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and each Issuer Free
Writing Prospectus listed on Schedule II(a) hereto does
not conflict with the information contained in the Registration
Statement or the Pricing Prospectus and will not conflict with the
information contained in the Prospectus, and each such Issuer Free
Writing Prospectus, as supplemented by and taken together with the
Pricing
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Prospectus as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state
any 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 this representation
and warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use
therein;
(d)
The documents incorporated
by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein; and no
such documents were filed with the Commission since the
Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule
II(b) hereto;
(e)
The Registration Statement
conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to each
part of the Registration Statement and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use
therein;
(f)
Neither the Company nor
any of its subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference
in the Pricing Prospectus any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been any
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change in the capital stock or long term debt
of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus;
(g)
The Company and its
subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the
Pricing 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;
(h)
The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of Massachusetts, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Pricing Prospectus, and has been 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
or in good standing in any such jurisdiction; and each subsidiary
of the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(i)
The Company has an
authorized capitalization as set forth in the Pricing 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 conform to the description of the Stock
contained in the Pricing Prospectus and will conform to the
description of the Stock contained in the Prospectus; and all of
the issued and outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for
directors’ qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except for liens granted under
the Company’s amended and restated security agreement, dated
December 1, 2005, between the Company and Credit Suisse, as
collateral agent;
(j)
The Securities to be
issued and sold by the Company to the Underwriters hereunder have
been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform
to the description of the Securities to be contained in the
Prospectus;
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(k)
The issue and sale of the
Securities and the compliance by the Company with this Agreement
and the consummation of the transactions herein contemplated 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 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 Articles of
Organization 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 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 Securities or the consummation by the Company of the
transactions contemplated by this Agreement except such as have
been obtained under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the
Underwriters;
(l)
Neither the Company nor
any of its subsidiaries is in violation of its Articles of
Organization (or other similar charter document) or By-laws or in
default in the performance or observance of any material
obligation, 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;
(m)
The statements set forth
in the Pricing Prospectus under the caption “Description of
Capital Stock”, insofar as they purport to constitute a
summary of the terms of the Stock, under the caption
“Material United States Federal Tax Consequences to Non-U.S.
Holders of Common Stock”, and under the caption
“Underwriting”, insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair; and the statements set forth in the
Prospectus under the caption “Description of Capital
Stock”, insofar as they purport to constitute a summary of
the terms of the Stock, under the caption “Material United
States Federal Tax Consequences to Non-U.S. Holders of Common
Stock”, and under the caption “Underwriting”,
insofar as they purport to describe the provisions of the laws and
documents referred to therein, will be accurate, complete and
fair;
(n)
Other than as set forth in
the Pricing Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, be reasonably expected to result in a material adverse
effect on the current or future financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries (a “Material Adverse Effect”);
and, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
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(o)
The Company is not and,
after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an
“investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(p)
(A) (i) At the
time of filing the Registration Statement, (ii) at the time of
the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) of the Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the
Act, the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the Act; and (B) at the
earliest time after the filing of the Registration Statement that
the Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Act) of
the Securities, the Company was not an “ineligible
issuer” as defined in Rule 405 under the
Act;
(q)
Deloitte & Touche
LLP, who have audited certain financial statements of the Company
and its subsidiaries and the Company’s internal control over
financial reporting and management’s assessment thereof, are
independent public accountants as required by the Act and the
rules and regulations of the Commission
thereunder;
(r)
The Company maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that
complies with the requirements of the Exchange Act and has been
designed by the Company’s principal executive officer and
principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. Except as described in the Pricing Prospectus,
the Company’s internal control over financial reporting is
effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting;
(s)
Since the date of the
latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, except as described in the
Pricing Prospectus, there has been no change in the Company’s
internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the
Company’s internal control over financial
reporting;
(t)
The Company maintains
disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and
procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial
officer by others within those entities; and, except as described
in the Pricing Prospectus with respect to the Company’s
internal control over financial reporting, such disclosure controls
and procedures are effective;
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(u)
There are no contracts,
agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with this offering;
(v)
Except for the Investors
Rights Agreement, dated June 30, 2004, by and among the
Company and the investors party thereto relating to the
Company’s common stock purchase warrants (“Investors
Rights Agreement”), there are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by
the Company under the Act;
(w)
The Securities are listed
on the Nasdaq Stock Market, Inc.’s Global Select Market
(“NASDAQ”);
(x)
This Agreement has been
duly authorized, executed and delivered by the Company;
(y)
The Company and its
subsidiaries possess adequate certificates, authorities or permits
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, be reasonably expected to result
in a Material Adverse Effect;
(z)
No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that would, individually or
in the aggregate, be reasonably expected to result in a Material
Adverse Effect;
(aa)
The Company and its
subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “intellectual property
rights”) necessary to conduct the business now operated by
them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries,
would, individually or in the aggregate, be reasonably expected to
result in a Material Adverse Effect;
(bb)
Except as disclosed in the
Pricing Prospectus and as would not, individually or in the
aggregate, be reasonably expected to result in a Material Adverse
Effect, (A) each of the Company and its subsidiaries is in
compliance with, and not subject to liability under, Environmental
Law (as defined below), (B) each of the Company and its
subsidiaries has made all filings, and provided all financial
assurances and notices, required under Environmental Law, and has,
and is in compliance with, all permits required
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under Environmental Law and each of them is in
full force and effect, (C) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, written notice
of violation, proceeding, notice or demand letter or written
request for information pending or, to the knowledge of the
Company, threatened, or, to the knowledge of the Company,
investigation threatened or pending, against the Company or any of
its subsidiaries under Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any
Environmental Law with respect to any asset, facility or property
owned, operated, leased or controlled by the Company or any of its
subsidiaries, (E) neither the Company nor any of its
subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“CERCLA”), or any comparable Environmental Law,
(F) no property or facility of the Company or any of its
subsidiaries is (i) listed or proposed for listing on the
National Priorities List promulgated pursuant to CERCLA,
(ii) listed in the Comprehensive Environmental Response,
Compensation and Liability Information System List promulgated
pursuant to CERCLA, or (iii) listed on any comparable list of
sites known or suspected to be contaminated with Hazardous Material
(as defined below) as maintained by any governmental authority,
(G) neither the Company nor any of its subsidiaries is
conducting or financing an investigation, or response, corrective
or other action pursuant to Environmental Law at any site or
facility, nor is any of them subject to or party to any order,
judgment, decree, contract or agreement which obligates it to
conduct or finance any such action nor has any of them assumed by
contract or agreement or otherwise any obligation or liability
under Environmental Law, and (H) there are no past or present
events, activities, operations, occurrences or conditions which
could reasonably be expected to prevent or interfere with
compliance by the Company or any of its subsidiaries with, or
result in liability of any of them under, Environmental Law
(including, without limitation, any capital or operating
expenditures required for cleanup, closure or compliance with
Environmental Law, any constraints on operating activities and any
potential liability to third parties).
For
purposes of this Agreement, “Environmental Law” means
the common law and all applicable federal, provincial, state and
local laws or regulations, codes, ordinances, orders, decrees,
judgments or injunctions issued, promulgated, approved or entered
thereunder, relating to pollution or protection of public or
employee health and safety, the environment or natural resources,
including, without limitation, those relating to
(i) emissions, discharges, releases or threatened releases of
Hazardous Material in or into the environment (including, without
limitation, ambient air, surface water, groundwater, drinking
water, land surface or subsurface strata, and natural resources
such as wetlands, flora and fauna) or exposure thereto,
(ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport, handling or
recycling of Hazardous Material, (iii) zoning, facility
siting, financial assurance, environmental impact assessment or
review, reclamation or land use and (iv) underground or
aboveground storage tanks and related piping, and emissions,
discharges, releases or threatened releases therefrom. For
purposes of this Agreement, “Hazardous Material” means
any substance, material, pollutant, contaminant, chemical,
constituent or waste, in any form, including without limitation,
petroleum and petroleum products, subject to regulation under or
which could give rise to liability under Environmental
Law;
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(cc)
The financial statements included in the Registration Statement and
the Pricing Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown
and, except as otherwise disclosed in the Pricing Prospectus, such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis and the schedules included in the
Registration Statement present fairly the information required to
be stated therein; and
(dd)
The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Exchange Act and
files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
2.
Subject to the terms and
conditions herein set forth, (a) the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price per share of $60.5625, the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional
Securities as provided below, the Company agrees to sell to each of
the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company at the purchase price
per share set forth in clause (a) of this Section 2, that
portion of the number of Optional Securities as to which such
election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number
of Optional Securities by a fraction, the numerator of which is the
maximum number of Optional Securities which such Underwriter is
entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is
the maximum number of Optional Securities that all of the
Underwriters are entitled to purchase hereunder.
The Company
hereby grants to the Underwriters the right to purchase at their
election up to 375,000 Optional Securities, at the purchase price
per share set forth in the paragraph above, for the sole purpose of
covering sales of shares in excess of the number of Firm
Securities, provided that the purchase price per Optional
Security shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on
the Firm Securities but not payable on the Optional
Securities. Any such election to purchase Optional Securities
may be exercised only by written notice from you to the Company
given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise
agree in writing, earlier than two or later than ten business days
after the date of such notice.
3.
Upon the authorization by
you of the release of the Firm Securities, the several Underwriters
propose to offer the Firm Securities for sale upon the terms and
conditions set forth in the Prospectus.
4.
(a)
The Securities to be
purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as
Goldman,
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Sachs & Co. may request upon at least
forty-eight hours’ prior notice to the Company, shall be
delivered by or on behalf of the Company to Goldman,
Sachs & Co., through the facilities of the Depository
Trust Company (“DTC”), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer of Federal (same-day)
funds to the account specified by the Company to Goldman,
Sachs & Co. at least forty-eight hours in advance.
The Company will cause the certificates representing the Securities
to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below)
with respect thereto at the office of DTC or its designated
custodian (the “Designated Office”). The time and
date of such delivery and payment shall be, with respect to the
Firm Securities, 9:30 a.m., New York City time, on
April 29, 2008 or such other time and date as Goldman,
Sachs & Co. and the Company may agree upon in writing,
and, with respect to the Optional Securities, 9:30 a.m., New
York time, on the date specified by Goldman, Sachs & Co.
in the written notice given by Goldman, Sachs & Co. of the
Underwriters’ election to purchase such Optional Securities,
or such other time and date as Goldman, Sachs & Co. and
the Company may agree upon in writing. Such time and date for
delivery of the Firm Securities is herein called the “First
Time of Delivery”, such time and date for delivery of the
Optional Securities, if not the First Time of Delivery, is herein
called the “Second Time of Delivery”, and each such
time and date for delivery is herein called a “Time of
Delivery”.
(b)
The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof,
including the cross-receipt for the Securities and any additional
documents requested by the Underwriters pursuant to
Section 8(k) hereof, will be delivered at the offices of
Cahill Gordon & Reindel LLP, 80 Pine St., New York, New
York 10005 (the “Closing Location”), and the Securities
will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final
drafts of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto.
For the purposes of this Section 4, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
City are generally authorized or obligated by law or executive
order to close.
5.
The Company agrees with
each of t
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