EXHIBIT 1.1
Execution Copy
CYTEC INDUSTRIES INC.
Debt Securities
UNDERWRITING AGREEMENT
September 29, 2005
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
ABN AMRO Incorporated
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28202-8272
As Representatives of the several Underwriters
Ladies and Gentlemen:
Cytec Industries Inc., a Delaware corporation (the "Company"), confirms
its agreement with Citigroup Global Markets Inc. ("Citigroup"), Wachovia Capital
Markets, LLC ("Wachovia"), ABN AMRO Incorporated ("ABN AMRO") and each of the
other underwriters named in Exhibit A hereto (collectively, the "Underwriters,"
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Citigroup, Wachovia and ABN AMRO are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company of (i) $250,000,000 aggregate
principal amount of its 5.500% senior notes due 2010, identified in Exhibit B-1
hereto (the "2010 Notes"), and (ii) $250,000,000 aggregate principal amount of
its 6.000% senior notes due 2015, identified in Exhibit B-2 hereto (the "2015
Notes" and, together with the 2010 Notes, the "Securities"), to be issued as
separate series of senior debt securities under an indenture (the "Indenture")
dated as of March 15, 1998, as amended by the First Supplemental Indenture,
dated as of May 11, 1998, between the Company and JPMorgan Chase Bank, National
Association, as successor to PNC Bank, National Association, as trustee (the
"Trustee"). The terms of such sale, pursuant to this Agreement, are described in
Exhibit B-1 and Exhibit B-2 hereto. Certain terms used in this Agreement are
defined in Section 15 hereof.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
Promptly after the execution of this Agreement, the Company will
prepare and file with the Commission in accordance with the provisions of Rule
424(b) a prospectus supplement relating to the Securities (the "Prospectus
Supplement"), together with the related prospectus dated September 19, 2005 (the
"Base Prospectus"), and the Company has previously advised you of all
information (financial and other) that will be set forth therein. The Prospectus
Supplement and the Base Prospectus in the form first furnished to the
Underwriters for use in connection with the offering of the Securities,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act as of the date of the Prospectus Supplement, are
herein called, collectively, the "Prospectus."
SECTION 1. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter as of the date hereof and as of the
Closing Date referred to in Section 2(b) hereof and agrees with each
Underwriter, as follows:
(a) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Initial Registration
Statement has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Initial Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or, to the
knowledge of the Company, are threatened by the Commission, and any request on
the part of the Commission for additional information has been complied with. At
the respective times the Initial Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became or
become effective, at any time subsequent to the effective date of the Initial
Registration Statement that the Company filed an Annual Report on Form 10-K with
the Commission and at the Closing Date, the Initial Registration Statement, any
Rule 462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the U.S. Trust Indenture Act of 1939,
as amended ("Trust Indenture Act") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
the Indenture did and will comply in all material respects with the requirements
of the Trust Indenture Act and the rules thereunder. Neither the Prospectus nor
any amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement is issued, at the Closing Date, and at any time when a
prospectus is required by applicable law to be delivered in connection with
sales of Securities, will include an untrue statement of a material fact or will
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.
The representations and warranties in this subsection shall not apply to (i)
that part of the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) of the Trustee under the Trust Indenture Act or (ii)
statements in or omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through any Representative expressly for use in the
Registration Statement or Prospectus or any amendment thereof or supplement
thereto.
Each Preliminary Prospectus and the 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 1933 Act complied when so filed in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
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(b) Incorporated Documents. The documents incorporated by reference in
the Registration Statement and the Prospectus, at the respective times they were
or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(c) Independent Accountants. KPMG LLP, who have certified the
financial statements and supporting schedules of the Company incorporated by
reference in the Registration Statement and the Prospectus, are independent
public accountants with respect to the Company within the meaning of the 1933
Act and the 1933 Act Regulations.
PricewaterhouseCoopers Reviseurs d'Enterprises, who have certified the
special purpose financial statements of Surface Specialties, a business of UCB
S.A. ("Surface Specialties"), incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants with respect to
Surface Specialties within the meaning of the 1933 Act and the 1933 Act
Regulations.
(d) Financial Statements. The financial statements of the Company
incorporated by reference in the Registration Statement and the Prospectus,
together with the related schedules (if any) and notes, present fairly, or will
present fairly, the financial position of the Company at the dates indicated and
the results of operations, changes in stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; and all
such financial statements, except as disclosed therein, have been or will be
prepared in conformity with GAAP applied on a consistent basis throughout the
periods involved and comply with all applicable accounting requirements under
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, as applicable. The special purpose financial statements of Surface
Specialties incorporated by reference in the Registration Statement and the
Prospectus, together with the related notes, present fairly the assets and
liabilities of Surface Specialties at the dates indicated and the direct
revenues and expenses of Surface Specialties for the periods specified; and all
such financial statements, except as disclosed therein, have been or will be
prepared in conformity with GAAP applied on a consistent basis throughout the
periods involved and, except as permitted pursuant to the comment letter dated
September 30, 2004 from the Commission to the Company, comply with all
applicable accounting requirements under the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations, as applicable. The supporting
schedules, if any, included in the Registration Statement present fairly, in
accordance with GAAP, the information required to be stated therein. The
Company's ratio of earnings to fixed charges included in the Registration
Statement and the Prospectus have been or will be calculated in compliance with
Item 503(d) of Regulation S-K of the Commission. The pro forma financial
statements included in the Registration Statement and the Prospectus include
assumptions as set forth therein that, to the Company's knowledge, provide a
reasonable basis for presenting the significant effects directly attributable to
the transactions and events described therein; the related pro forma adjustments
give appropriate effect to those assumptions; and the pro forma adjustments
reflect the proper application of those adjustments to the historical financial
statement amounts in the pro forma financial statements included in the
Registration Statement and the Prospectus. The pro forma financial statements
included in the Registration Statement and the Prospectus comply as to form
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in all material respects with the applicable accounting requirements of
Regulation S-X under the 1933 Act.
(e) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus (in each case exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), except as otherwise stated therein,
(A) there has been no material adverse change in the general affairs, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries considered as one enterprise, whether or not in the ordinary course
of business ("Material Adverse Effect") and (B) there have been no transactions
entered into by the Company or any of its subsidiaries which are material with
respect to the Company and its subsidiaries considered as one enterprise and not
in the ordinary course of business.
(f) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in the State of New Jersey and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except (solely in the case of jurisdictions
other than the State of New Jersey) where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(g) Good Standing of Subsidiaries. Each Material Subsidiary of the
Company has been duly organized and is validly existing as a corporation,
limited or general partnership or limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its organization, has
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation, limited or general partnership or limited liability company, as the
case may be, to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement and the Prospectus,
all of the issued and outstanding capital stock of each such subsidiary that is
a corporation, all of the issued and outstanding partnership interests of each
such subsidiary that is a limited or general partnership and all of the issued
and outstanding limited liability company interests, membership interests or
other similar interests of each such subsidiary that is a limited liability
company have been duly authorized and validly issued, are fully paid and (except
in the case of general partnership interests) non-assessable and are owned by
the Company, directly or through subsidiaries, free and clear of any Lien; and
none of the outstanding shares of capital stock, partnership interests or
limited liability company interests, membership interests or other similar
interests of any such subsidiary was issued in violation of any preemptive
rights, rights of first refusal or other similar rights of any securityholder of
such subsidiary or any other person.
(h) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
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(i) Authorization of Securities. 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,
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).
(j) Description of Securities. The Securities conform in all material
respects to all of the respective statements relating thereto contained in the
Prospectus and such statements conform in all material respects to the Indenture
and the other instruments and agreements defining the same.
(k) Absence of Defaults and Conflicts. Neither the Company nor any of
its Material Subsidiaries is in violation of its Organizational Documents or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any Company Document, except for such defaults that
would not result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Securities and including and based on
the use of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the Company
with its obligations under this Agreement do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event under, or result in the
creation or imposition of any Lien upon any property or assets of the Company or
any of its Material Subsidiaries pursuant to any Subject Instrument, except for
such conflicts, breaches, defaults, Repayment Events or Liens that would not
result in a Material Adverse Effect, nor will such action result in any
violation of the provisions of the Organizational Documents of the Company or
any of its Material Subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its Material Subsidiaries or any of their respective assets,
properties or operations.
(l) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any of its subsidiaries taken as
a whole which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which would reasonably be expected to result in a
Material Adverse Effect, or which would reasonably be expected to materially and
adversely
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affect the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations under this Agreement.
(m) Accuracy of Descriptions and Exhibits. The information in the
Prospectus under the captions "Description of Notes" and "Description of Debt
Securities We May Offer" and the information in the Company's Annual Report on
Form 10-K for the fiscal year ended 2004 under the captions "Legal Proceedings"
to the extent that it constitutes matters of law, summaries of legal matters,
summaries of provisions of the Company's charter or by-laws or any other
instruments or agreements, summaries of legal proceedings, or legal conclusions,
is correct in all material respects; all descriptions in the Registration
Statement and the Prospectus of any Company Documents are accurate in all
material respects; and there are no franchises, contracts, indentures,
mortgages, deeds of trust, loan or credit agreements, bonds, notes, debentures,
evidences of indebtedness, leases or other instruments or agreements required to
be described or referred to in the Registration Statement, the Prospectus or the
documents incorporated or deemed to be incorporated by reference therein or to
be filed as exhibits thereto which have not been so described and filed as
required.
(n) Absence of Further Requirements. (A) No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or foreign,
(B) no waiver or consent under any Subject Instrument, and (C) no authorization,
approval, vote or other consent of any other person or entity, is necessary or
required for the performance by the Company of its obligations under this
Agreement, for the offering, issuance, sale or delivery of the Securities
hereunder or for the consummation of any of the other transactions contemplated
by this Agreement, in each case on the terms contemplated by the Prospectus,
except such as have been already obtained under the 1933 Act, the 1933 Act
Regulations or the Trust Indenture Act or such as may be required under state
securities laws.
(o) Investment Company Act. The Company is not, and upon the issuance
and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus, will not be, an "investment
company" or an entity "controlled" by an "investment company" as such terms are
defined in the 1940 Act.
(p) Environmental Laws. Except as described in the Registration
Statement or the Prospectus, or except as would not, individually or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company nor any
of its subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company and
its subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending, or to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand
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letters, claims, liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that would reasonably
be expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(q) Accounting Controls. The Company and its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that in all material respects: (A) transactions are executed in
accordance with management's general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability; (C)
access to assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the applicable purchase prices set forth on Exhibits B-1 and B-2 (collectively,
the "Purchase Price"), the principal amount of Securities set forth in Exhibit A
opposite the name of such Underwriter, plus any additional principal amount of
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) Payment. Payment of the Purchase Price for, and delivery of
certificates for, the Securities shall be made at the date, time and location
set forth in Exhibits B-1 and B-2, or at such other date, time and location as
shall be agreed upon by the Representatives and the Company (such time and date
of payment and delivery being herein called "Closing Date").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of the
Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of and
receipt for, and make payment of the Purchase Price for, the Securities. The
Representatives, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the Purchase Price for the
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Date, but such payment shall not relieve such Underwriter from
its obligations hereunder.
(c) Denominations; Registration. The Company will deliver the
Securities against payment of the Purchase Price in the form of one or more
permanent global securities in definitive form (the "Global Securities")
deposited with the Trustee as custodian for The Depository Trust Company ("DTC")
and registered in the name of Cede & Co, as nominee for DTC. Interests in
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any Global Securities will be held in book-entry form through DTC, except in the
limited circumstances described in the Prospectus.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests .
The Company, subject to Section 3(b), will comply with the requirements of Rule
415 and will notify the Representatives promptly, (i) when any Rule 462(b)
Registration Statement or any post-effective amendment to the Registration
Statement shall become effective, or any supplement to the Prospectus or any
amended Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement (including, without limitation, any request for any
amendment or supplement to the documents incorporated by reference therein) or
any amendment or supplement to the Prospectus or for additional information and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of the Prospectus or any Preliminary Prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will timely effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the document transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such document. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof as soon as practicable.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)) or any amendment, supplement
or revision to either the prospectus included in the Registration Statement at
the time it became effective or to the Prospectus, whether pursuant to the 1933
Act, the 1934 Act or otherwise, will furnish the Representatives with copies of
any such documents within a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall reasonably
object.
(c) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of the Preliminary Prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request.
(d) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
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which it is necessary, in the opinion of counsel for the Underwriters 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, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(e) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(f) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(g) Restriction on Sale of Securities. The Company will not, without
the prior written consent of the Representatives, offer, sell, contract to sell,
pledge or otherwise dispose of (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, any debt securities,
or publicly announce an intention to effect any such transaction, for a period
beginning on and including the date of the pricing of the Securities through and
including the Closing Date; provided, however, that the Company may issue and
sell Securities pursuant to this Agreement.
(h) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, 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.
SECTION 3A. Additional Covenants.
The Company and each Underwriter agree that, in connection with the
offering of Securities contemplated hereunder, they shall not make any offer or
sale of the Securities in any Member State of the European Economic Area which
has implemented Directive 2003/71/EC, including any relevant implementing
measure in such Member State.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing, filing and delivery to the
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Underwriters of the Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Prospectus and each
amendment or supplement to any of them, (ii) the word processing, printing and
delivery to the Underwriters of this Agreement, (iii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Securities to the
Underwriters, (iv) the fees and disbursements of the counsel, accountants and
other advisors to the Company, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky survey and any supplements thereto, (vi) the preparation,
printing and delivery to the Underwriters of copies of the Blue Sky survey and
any supplements thereto, (vii) the fees and expenses of any transfer agent or
registrar for the Securities and (viii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the NASD of the terms of the sale of the
Securities; provided, however, that, except as provided in this Section 4, each
of the Underwriters will pay its own costs and expenses (including the fees of
its counsel), transfer taxes on resale of any of the Securities by them and any
advertising expenses connected with any offers it may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or (v) hereof, the Company shall reimburse the Underwriters severally
through the Representatives for all of their out-of-pocket expenses approved in
writing by the Representatives, including the reasonable fees and disbursements
of one counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in this Agreement or in
certificates of any officer of the Company or any Material Subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and on the Closing Date no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or, to the knowledge of the Company,
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) within the time period
prescribed by such Rule, and prior to the Closing Date, the Company shall have
provided evidence satisfactory to the Representatives of such timely filing.
(b) Opinion of Counsel for Company. At the Closing Date, the
Underwriters shall have received the favorable opinions, dated as of the Closing
Date, of the General Counsel of the Company ("In-house Company Counsel") and of
Sullivan & Cromwell LLP ("Outside Company Counsel" and together with the
In-house Company Counsel, each a "Company Counsel") to the effect set forth in
Exhibit D-1 and Exhibit D-2 hereto, respectively.
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(c) Opinion of Counsel for Underwriters. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of Shearman & Sterling LLP, counsel for the Underwriters, to the effect
set forth in Exhibit D-3 hereto.
(d) No Material Adverse Effect; Officers' Certificate. At the Closing
Date, there shall not have been, since the date hereof or since the respective
dates as of which information is given in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement) a
Material Adverse Effect, and, on the Closing Date, the Representatives shall
have received a certificate of the Chairman, the President, the Chief Executive
Officer or an Executive Vice President or Senior Vice President of the Company
and of the Chief Financial Officer or Chief Accounting Officer of the Company,
dated as of the Closing Date, to the effect that (i) to their knowledge, there
has been no Material Adverse Effect, (ii) the representations and warranties of
the Company in this Agreement are true and correct in all material respects with
the same force and effect as though expressly made at and as of the Closing
Date, (iii) to their knowledge, the Company has complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied at or prior to the Closing
Date under or pursuant to this Agreement and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to their knowledge, are threatened by
the Commission.
(e) Accountants' Comfort Letters. At the time of the execution of this
Agreement, the Underwriters shall have received from KPMG LLP a letter, dated
the date of this Agreement and in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information of the
Company contained in the Registration Statement or the Prospectus.
At the time of the execution of this Agreement, the Underwriters shall
have received from PricewaterhouseCoopers Reviseurs d'Enterprises a letter,
dated the date of this Agreement and in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the special purpose financial statements and certain financial
information of Surface Specialties contained in the Registration Statement or
the Prospectus.
(f) Bring-down Comfort Letters. At the Closing Date, the Underwriters
shall have received from KPMG LLP a letter, dated as of the Closing Date to the
effect set forth in Exhibit D-4 hereto.
At the Closing Date, the Underwriters shall have received from
PricewaterhouseCoopers Reviseurs d'Enterprises a letter, dated as of the Closing
Date, reaffirming as of such date without qualification the statements made in
the letter from PricewaterhouseCoopers Reviseurs d'Enterprises furnished
pursuant to subsection (e) of this Section.
(g) Additional Documents. At the Closing Date, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of
11
enabling them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, contained in this
Agreement; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated and in connection
with the other transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(h) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled in all material respects when and as
required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the Closing
Date and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof and except that Sections 6 and 7
hereof shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as reasonably incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any Preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as reasonably incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(c) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as 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 based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above,
provided, however, that (i) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished
12
to the Company by any Underwriter through any Representative expressly for use
in the Registration Statement (or any amendment thereto), or in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or that
part of the Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee and (ii)
this indemnity agreement with respect to any Preliminary Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such losses, liabilities,
claims, damages or expenses purchased Securities, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any such
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such is required by the 1933 Act or the 1933 Act
Regulations, at or prior to the written confirmation of the sale of such
Securities to such person and if the Prospectus (as so amended or supplemented,
if applicable) would have corrected the defect giving rise to such loss,
liability, claim, damage or expense.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers 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 against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 6, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through any Representative expressly for use in the Registration Statement (or
any amendment thereto) or such Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. 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. Counsel to the indemnified parties shall be selected by the
indemnifying party to represent the indemnified parties in any action for which
indemnification is sought; provided, however, that such counsel shall be
reasonably satisfactory to the indemnified parties. 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 the fees and expenses of
more than one counsel separate from their own counsel 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 6 or Section
7 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
13
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 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 reasonably 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 Underwriters on the other hand from the
offering of the Securities 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
Underwriters on the other hand in connection with the 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
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth on the cover of the Prospectus
Supplement, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
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 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 pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 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 untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
14
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, 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. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Exhibit A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time on or prior to the Closing Date
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, a
Material Adverse Effect, or (ii) if there has occurred any material adverse
change in the financial markets in the United States, any outbreak of
hostilities or escalation thereof or other calamity or crisis, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the NYSE,
or if trading generally on the NYSE has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by said exchange or by order of the Commission, the
NASD or any other governmental authority, or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States, or (iv) if a banking moratorium has been declared by either
United States Federal or New York authorities or (v) if there shall have
occurred, since the time of execution of this Agreement, any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined by the Commission for purposes of
Rule 436 under the 1933 Act) or any public announcement that any such
organization has under surveillance or review its ratings on any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating) or any
announcement by any such organization that the Company has been placed on
negative outlook.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section
15
+
4 hereof, and provided further that Sections 6 and 7 hereof shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Date to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, the Representatives shall have the right to postpone the
Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at Citigroup Global
Markets Inc., 388 Greenwich Street, New York, New York 10013, Attention: General
Counsel; ABN AMRO Incorporated, Park Avenue Plaza, 55 East 52nd Street, New
York, NY 10055, Attention of Legal Department and Wachovia Capital Markets, LLC,
One Wachovia Center, 301 South College Street, Charlotte, NC 28202-8272,
Attention of Legal Department; and notices to the Company shall be directed to
it at Five Garret Mountain Plaza, West Paterson, NJ 07424, Attention of the
Secretary.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions
16
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Section and Exhibit headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 15. Definitions. As used in this Agreement, the following
terms have the respective meanings set forth below:
"Agreement" or "Underwriting Agreement" means this Underwriting
Agreement, dated as of September 29, 2005, among the Company and the
Underwriters.
"Commission" means the United States Securities and Exchange
Commission.
"Company Documents" means the Organizational Documents of the
Company or a Material Subsidiary or the Subject Instruments.
"EDGAR" means the Commission's Electronic Data Gathering, Analysis
and Retrieval System.
"GAAP" means generally accepted accounting principles in the
United States.
"Initial Registration Statement" means the Company's registration
statement on Form S-3 (Registration No. 333-127507), as amended (if
applicable (including the initial post-effective amendment thereto)),
at the time the initial post-effective amendment became effective,
including the documents incorporated or deemed to be incorporated by
reference therein at such time pursuant to Item 12 of Form S-3 under
the 1933 Act.
"Lien" means any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
"Material Subsidiaries" means those subsidiaries of the Company
listed on Exhibit C hereto.
"NASD" means the National Association of Securities Dealers, Inc.
"NYSE" means the New York Stock Exchange.
"Organizational Documents" means (a) in the case of a corporation,
its charter and by-laws; (b) in the case of a limited or general
partnership, its partnership certificate, certificate of formation or
similar organizational document and its partnership agreement;
17
(c) in the case of a limited liability company, its articles of
organization, certificate of formation or similar organizational
documents and its operating agreement, limited liability company
agreement, membership agreement or other similar agreement; (d) in the
case of a trust, its certificate of trust, certificate of formation or
similar organizational document and its trust agreement or other
similar agreement; and (e) in the case of any other entity, the
organizational and governing documents of such entity.
"Preliminary Prospectus" means any prospectus supplement used in
connection with the offering of the Securities that was used before the
Initial Registration Statement became effective, or that was used after
such effectiveness and prior to the execution and delivery of this
Agreement, in each case together with the related prospectus and the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act.
"Registration Statement" means the Initial Registration Statement;
provided that, if a Rule 462(b) Registration Statement is filed with
the Commission, then the term "Registration Statement" shall also
include such Rule 462(b) Registration Statement.
"Repayment Event" means any event or condition which gives the
holder of any bond, note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary of the Company.
"Rule 424(b)" and "Rule 462(b)" refer to such rules under the 1933
Act.
"Rule 462(b) Registration Statement" means a registration
statement filed by the Company pursuant to Rule 462(b) for the purpose
of registering any of the Securities under the 1933 Act, including the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the 1933 Act at the time such registration statement became
effective.
"Subject Instruments" means the Company agreements listed in
Exhibit E hereto.
"1933 Act" means the U.S. Securities Act of 1933, as amended.
"1933 Act Regulations" means the rules and regulations of the
Commission under the 1933 Act.
"1934 Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"1934 Act Regulations" means the rules and regulations of the
Commission under the 1934 Act.
"1940 Act" means the U.S. Investment Company Act of 1940, as
amended.
All references to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to EDGAR.
18
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any Preliminary Prospectus or the Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any Preliminary Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such Preliminary Prospectus or the Prospectus, as the
case may be.
SECTION 16. No Fiduciary Duty. The Company hereby acknowledges that (a)
the Underwriters are acting as principals and not as agents or fiduciaries of
the Company and (b) its engagement of the Underwriters in connection with the
offering of the Securities is as independent contractors and not in any other
capacity. Furthermore, the Company agrees that it is solely responsible for
making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company
on related or other matters).
[Signature Page Follows]
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
CYTEC INDUSTRIES INC
By: /s/ James P. Cronin
----------------------------------
Name: James P. Cronin
Title: Executive Vice President
and Chief Financial Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
BY: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Robert Jeffries
-------------------------------------
Name: Robert Jeffries
Title: Managing Director
By: ABN AMRO INCORPORATED
By: /s/ Paul L. Hatton
-------------------------------------
Name: Paul L. Hatton
Title: Managing Director
BY: WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Amy Kabatznick
-------------------------------------
Name: Amy Kabatznick
Title: Managing Director
For themselves and as Representatives of the Underwriters named in Exhibit A
hereto.
EXHIBIT A
Principal Amount Principal Amount
of 5.500% Notes of 6.000% Notes
due 2010 due 2015
Name of Underwriter ---------------- ----------------
- -------------------
Citigroup Global Markets Inc................ $82,812,500 $67,788,462
ABN AMRO Incorporated....................... 117,187,500 0
Wachovia Capital Markets, LLC............... 0 132,211,538
Calyon Securities (USA) Inc. ............... 17,750,000 17,750,000
Scotia Capital (USA) Inc. .................. 17,750,000 17,750,000
BNY Capital Markets, Inc. .................. 7,250,000 7,250,000
PNC Capital Markets, Inc. .................. 7,250,000 7,250,000
---------------- ----------------
Total.................................. $250,000,000 $250,000,000
================ ================
A-1
EXHIBIT B-1
Underwriting Agreement dated September 29, 2005
Registration Statement No. 333-127507
Title:.................................................. 5.500% Notes Due 2010
Principal Amount:....................................... $250,000,000
Indenture:.............................................. Indenture dated as of March 15, 1998, as amended by the
First Supplemental Indenture dated as of May 11, 1998,
between Cytec Industries Inc. and JPMorgan Chase Bank,
National Association (as successor to PNC Bank,
National Association, under the Indenture), as Trustee.
Interest Rate:.......................................... 5.500% per annum, commencing October 4, 2005, payable
semiannually in arrears on the interest payment dates
set forth below, to holders of record on the preceding
March 15 or September 15, as the case may be.
Interest Payment Dates:................................. April 1 and October 1
Date of Maturity:....................................... October 1, 2010
Price to Public:........................................ 99.850%
Purchase Price:......................................... 99.250%
Sinking Fund Provisions:................................ None.
Redemption Provisions:.................................. As specified in the Prospectus Supplement under the
caption headed "Description of Notes--Optional
Redemption."
Authorized Denominations:............................... $1,000 and integral multiples of $1,000 in excess
thereof.
Closing Date, Time and Location:........................ October 4, 2005, 10:00 a.m. (unless postponed in
accordance with the provisions of Section 10 of the
Underwriting Agreement), at the offices of Shearman &
Sterling LLP, 599 Lexington Avenue, New York, NY, 10022.
B-1
EXHIBIT B-2
Underwriting Agreement dated September 29, 2005
Registration Statement No. 333-127507
Title:.................................................. 6.000% Notes Due 2015
Principal Amount:....................................... $250,000,000
Indenture:.............................................. Indenture dated as of March 15, 1998, as amended by the
First Supplemental Indenture dated as of May 11, 1998,
between Cytec Industries Inc. and JPMorgan Chase Bank,
National Association (as successor to PNC Bank,
National Association, under the Indenture), as Trustee.
Interest Rate:.......................................... 6.000% per annum, commencing October 4, 2005, payable
semiannually in arrears on the interest payment dates
set forth below, to holders of record on the preceding
March 15 or September 15, as the case may be.
Interest Payment Dates:................................. April 1 and October 1
Date of Maturity:....................................... October 1, 2015
Price to Public:........................................ 99.741%
Purchase Price:......................................... 99.091%
Sinking Fund Provisions:................................ None.
Redemption Provisions:.................................. As specified in the Prospectus Supplement under the
caption headed "Description of Notes--Optional
Redemption."
Authorized Denominations:............................... $1,000 and integral multiples of $1,000 in excess
thereof.
Closing Date, Time and Location:........................ October 4, 2005, 10:00 a.m. (unless postponed in
accordance with the provisions of Section 10 of the
Underwriting Agreement), at the offices of Shearman &
Sterling LLP, 599 Lexington Avenue, New York, NY, 10022.
B-2