Shares
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OCI HOLDINGS CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALEX. BROWN & SONS INCORPORATED
SALOMON BROTHERS INC
As representatives of the
several underwriters named in
Schedule I hereto
c/o Donaldson, Lufkin &
Jenrette Securities
Corporation
277 Park Avenue
New York, New York 10172
Dear Sirs:
OCI HOLDINGS CORPORATION, a Delaware corporation (the "Company"),
proposes to issue and sell shares of Common Stock, par value $0.01, of
the Company (the "Firm Shares") to the several underwriters named in Schedule I
hereto (the "Underwriters"). The Company also proposes to issue and sell to the
several Underwriters not more than additional shares of Common Stock,
par value $0.01, of the Company (the "Additional Shares") if requested by the
Underwriters as provided in Section 2 hereof. The Firm Shares and the
Additional Shares are herein collectively called the "Shares." The
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shares of common stock of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "Common Stock."
Simultaneously with the issuance and sale by the Company of the Shares, the
Company is offering $125 million aggregate principal amount of its % Senior
Subordinated Notes due 2007 (the "Note Offering").
Section 1. Registration Statement and Prospectus. The Company has
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prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder (collec-
tively, the "Act"), a registration statement on Form S-1 (File No. 333- )
including a prospectus relating to the Shares. The registration statement as
amended at the time when it becomes effective including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Act, is hereinafter referred to as the
"Registration Statement"; and the prospectus in the form first used to confirm
sales of Shares is hereinafter referred to as the "Prospectus." (1)(2) If the
Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Act registering
additional shares of Common Stock (a "Rule 462(b) Registration Statement"),
then, unless otherwise specified, any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462(b)Registration Statement.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements.
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On the basis of the representations and warranties contained in this Agreement
(this "Agreement"), and subject to its terms and conditions, the Company agrees
to issue and sell and each Underwriter agrees, severally and not jointly, to
purchase from the Company at a price per share of $ (the "Purchase
Price") the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. The Underwriters may exercise their right to purchase
Additional Shares in whole or in part from time to time by giving written
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notice thereof to the Company within 30 days after the date of this Agreement.
You shall give any such notice on behalf of the Underwriters and such notice
shall specify the aggregate number of Additional Shares to be purchased pursuant
to such exercise and the date for payment and delivery thereof. The date
specified in any such notice shall be a business day (i) no earlier than the
Closing Date (as hereinafter defined) and (ii) no later than ten business days
after such notice has been given. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Company
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
total number of Additional Shares to be purchased from the Company as the number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
bears to the total number of Firm Shares.
The Company shall, concurrently with the execution of this Agreement,
deliver an agreement executed by (i) each of the directors and officers of the
Company and (ii) each stockholder listed on Annex I hereto pursuant to which
each such person agrees, not to offer, sell, contract to sell, grant any option
to purchase or otherwise dispose of any common stock of the Company or any
securities convertible into or exercisable or exchangeable for such common stock
or in any other manner transfer all or a portion of the economic consequences
associated with the ownership of any such common stock, except to the
Underwriters pursuant to this Agreement, for a period of 180 days after the date
of the Prospectus without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation.
Section 3. Terms of Public Offering. The Company is advised by you
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that the Underwriters propose (i) to make a public offering of their respective
portions of the Shares as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
Section 4. Delivery and Payment. Delivery to the Underwriters of
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and payment for the Firm Shares shall be made at 9:00 A.M., New York City time,
on , 1997(the "Closing Date"), at the offices of Cahill Gordon &
Reindel, New York, New York, or at such other place as shall be agreed upon by
the Underwriters and the Company. The Closing Date and the location of delivery
of and the form of payment for the Firm Shares may be varied by agreement
between you and the Company.
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Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 9:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "Option
Closing Date"). Any such Option Closing Date and the location of delivery of
and the form of payment for such Additional Shares may be varied by agreement
between you and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be, with any
transfer taxes thereon duly paid by the Company, for the respective accounts of
the several Underwriters, against payment to the Company of the Purchase Price
therefor by wire transfer of Federal or other funds immediately available in New
York City to such account or accounts as specified by the Company.
Section 5. Agreements of the Company. The Company agrees with you:
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(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus
or for additional information, (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of the suspension of qualification of the Shares for offering or sale in
any jurisdiction, or the initiation of any proceeding for such purposes,
(iii) when any amendment to the Registration Statement becomes effective,
(iv) if the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, when the Rule 462(b)
Registration Statement has become effective and (v) of the happening of any
event during the period referred to in Section 5(d) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, the
Company will use
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its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you and counsel for the Underwriters, without charge,
four signed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits, and to
furnish to you and each Underwriter designated by you such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus in a form approved by you and to file the
Prospectus in such form with the Commission within the applicable period
specified in Rule 424(b) under the Act; not to file any further amendment
to the Registration Statement and not to make any amendment or supplement
to the Prospectus of which you shall not previously have been advised or to
which you shall reasonably object after being so advised; and to prepare
and file with the Commission, promptly upon your reasonable request, any
amendment to the Registration Statement or amendment or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any
such amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement, and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter
or a dealer, to furnish to each Underwriter and dealer as many copies of
the Prospectus (and of any amendment or supplement to the Prospectus) as
such Underwriter or dealer may reasonably request.
(e) If during the period specified in paragraph (e) any event shall occur
as a result of which, in the opinion of counsel for the Underwriters it
becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus,
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as so amended or supplemented, will not in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter or
dealers may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with you and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect
so long as required for distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in
order to effect such registration or qualification.
(g) To mail and make generally available to its stockholders as soon as
practicable an earning statement covering a period of at least twelve
months after the effective date of the Registration Statement (but in no
event commencing later than 90 days after such date) that shall satisfy the
provisions of Section 11(a) of the Act and to advise you in writing when
such statement has been so made available.
(h) During the period of three years after the date of this Agreement, to
furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished
to or filed with the Commission on any national securities exchange on
which any class of securities of the Company is listed and such other
publicly available information concerning the Company and its subsidiaries
as you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Act and all other fees or
expenses in connection with the preparation, printing, filing and
distribution of the Registration Statement (including financial statements
and exhibits), any preliminary prospectus, the Prospectus
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and all amendments and supplements to any of the foregoing prior to or
during the period specified in Section 5(d), including the mailing and
delivering of copies thereof to the Underwriters and dealers in the
quantities specified herein, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement and any other agreements or documents in
connection with the offering, purchase, sale or delivery of the Shares,
(iv) all expenses in connection with the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any Preliminary and
Supplemental Blue Sky Memoranda in connection therewith (including the
filing fees and fees and disbursements of counsel for the Underwriters in
connection with such registration or qualification and memoranda relating
thereto), (v) the filing fees and disbursements of counsel for the
Underwriters in connection with the review and clearance of the offering of
the Shares by the National Association of Securities Dealers, Inc., (vi)
all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all
costs and expenses incident to the listing of the Shares on the Nasdaq
National Market, (vii) the cost of printing certificates representing the
Shares, (viii) the costs and charges of any transfer agent, registrar
and/or depositary, and (ix) and all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section.
(j) To use its best efforts to list for quotation the Common Stock on the
Nadasq National Market and to maintain the inclusion of the Common Stock in
the Nasdaq National Market (or on a national securities exchange) for a
period of three years from the date of this Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company
prior to the Closing Date or any Option Closing Date, as the case may be,
and to satisfy all conditions precedent to the delivery of the Shares.
(l) To apply the net proceeds from the sale of the Shares as set forth in
the Prospectus under the heading "Use of Proceeds."
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(m) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time,
on the date of this Agreement and to pay to the Commission the filing fee
for such Rule 462(b) Registration Statement at the time of the filing
thereof or to give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act.
Section 6. Representations and Warranties of the Company. The
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Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness
of this Agreement), when it became effective, did not contain and, as
amended, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Act and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act; and did not contain an untrue statement of a
ma-
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terial 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, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in any preliminary prospectus bases upon
information relating to any underwriter furnished to the Company in writing
by such underwriter through you expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to
carry on its business as described in its Prospectus and to own, lease and
operate its properties, and each is duly qualified and is in good standing
as a foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable, and are owned by the Company, free and clear
of any security interest, claim, lien, encumbrance or adverse interest of
any nature.
(f) All the outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, nonassessable and
not subject to any preemptive or similar rights; and the Shares have been
duly authorized and, when issued and delivered to the Underwriters against
payment therefor as provided by this Agreement, will be validly issued,
fully paid and nonassessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights.
(g) There are no outstanding subscriptions, rights, warrants, calls or
options to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of, any
shares of capital stock of or other equity or other ownership interest in
the Company or any of its subsidiaries.
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(h) The Company has the authorized capitalization, including the Common
Stock, as set forth in the Prospectus under the caption "Capitalization."
(i) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any other agreement, indenture
or instrument material to the conduct of the business of the Company and
its subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound.
(j) The Company has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby,
and the Company has all requisite corporate power and authority to issue
and deliver the Shares to be issued and sold by it hereunder. This
Agreement has been duly authorized, executed and delivered by the Company.
(k) The execution, delivery and performance of this Agreement, compliance
by the Company with all the provisions hereof and the consummation of the
transactions contemplated hereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the
securities or Blue Sky laws of the various states) and will not conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its
subsidiaries or any agreement, indenture or other instrument to which it or
any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or violate or conflict
with any laws, administrative regulations or rulings or court decrees
applicable to the Company, any of its subsidiaries or their respective
property.
(l) There are no material legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any of
their respective property is the subject, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated.
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(m) There are no contracts or other documents of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement that is not so described or
filed as required.
(n) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder, that in
each case might result in any material adverse change in the business,
prospects, financial condition or results of operation of the Company and
its subsidiaries, taken as a whole.
(o) The Company and each of its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its
respective properties and to conduct its business; the Company and each of
its subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(p) Except as otherwise set forth in the Prospectus or such as are not
material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Registration Statement as being owned by it. All leases to which the
Company or any of its subsidiaries is a party are valid and binding and no
default has occurred or is continuing
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thereunder that might result in any material adverse change in the
business, prospects, financial condition or results of operation of the
Company and its subsidiaries taken as a whole, and the Company and its
subsidiaries enjoy peaceful and undisturbed possession under all such
leases to which any of them is a party as lessee with such exceptions as do
not materially interfere with the use made by the Company or such
subsidiary.
(q) The Company and each of its subsidiaries maintains reasonably
adequate insurance for the business in which it is engaged.
(r) Each of KPMG Peat Marwick LLP, Moore & Gray, Ernst & Young LLP,
McGladrey & Pullen, LLP, Morrison and Smith and Arthur Andersen LLP
(collectively, the "Independent Public Accountants") is an independent
public accountant with respect to the Company as required by the Act.
(s) The consolidated financial statements, together with related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
in the Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements
and the books and records of the Company. The pro forma financial
statements and data set forth in the Registration Statement and the
Prospectus present fairly in all material respects the information shown
therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro form information, have been properly
compiled on the pro forma basis described therein and the assumptions used
in the preparation thereof are reasonable and the adjustments therein are
appropriate to give effect to the transactions and circumstances referred
to therein.
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(t) Neither the Company nor any of its subsidiaries is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(u) No holder of any security of the Company has any right to require
registration of shares of Common Stock or any other security of the
Company.
(v) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(w) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(x) There is (i) no significant unfair labor practice complaint pending
against the Company or any of its subsidiaries or, to the best knowledge of
the Company, threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board, and no
significant grievance or more significant arbitration proceeding arising
out of or under any collective bargaining agreement is so pending against
the Company or any of its subsidiaries or, to the best knowledge of the
Company, threatened against any of them, and (ii) no significant strike,
labor dispute, slowdown or stoppage pending against the Company or any of
its subsidiaries or, to the best knowledge of the Company, threatened
against it or any of its subsidiaries except for such actions specified in
clause (i) or (ii) above that, singly or in the aggregate, could not
reasonably be expected to have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(y) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at
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reasonable intervals and appropriate action is taken with respect to any
differences.
(z) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any assessment received
by the Company or any of its subsidiaries have been paid, other than those
being contested in good faith and for which adequate reserves have been
provided.
(aa) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of the Company or any of its subsidiaries that
could reasonably be expected to have a material adverse effect on the
Company or its subsidiaries; each such employee benefit plan is in
compliance in all material respects with applicable law, including ERISA
and the Code; the Company and each of its subsidiaries have not incurred
and do not expect to incur liability under Title IV of ERISA with respect
to the termination of, or withdrawal from, any pension plan for which the
Company or any of its subsidiaries would have any liability; and each such
pension plan that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, that could reasonably be expected
to cause the loss of such qualification.
(ab) Neither the Company nor, to the best knowledge of the Company, any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds;
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(iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(ac) The Company has not taken and will not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or
result in the stabilization or manipulation of the price of the Shares.
(ad) No forward-looking statement (within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act) contained in the Registration
Statement has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(ae) Since the respective dates as of which information is given in the
Prospectus, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or in the
earnings, business prospects, financial condition or results of operations
of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, (ii) the Company has not
incurred any material liability or obligation, direct or contingent, other
than in the ordinary course of business, (iii) the Company has not entered
into any material transaction other than in the ordinary course of business
and (iv) there has not been any change in the capital stock or long-term
debt of the Company, or any dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
Section 7. Indemnification. (a) The Company agrees to indemnify and
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hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from
and against any and all losses, claims, damages, liabilities and judgments
(including without limitation, any legal or other expenses incurred in
connection with defending or investigating any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement
-16-
thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to any Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use
therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to such Underwriter
but only with reference to information relating to such Underwriter
furnished in writing to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto),
the Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and payment of all fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which
indemnity may be sought pursuant to both Sections 7(a) and 7(b), the
Underwriter shall not be required to assume the defense of such action
pursuant to this Section 7(c), but may employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of such
Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action
or employ counsel reasonably satisfactory to the indemnified
-17-
party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party and the indemnified person shall have been advised by such counsel
that there may be one or more legal defenses available to it that are
different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to assume
the defense of such action on behalf of the indemnified party. In any such
case, the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all indemnified parties,
and all such fees and expenses shall be reimbursed as they are incurred.)
Such firm shall be designated in writing by Donaldson, Lufkin & Jenrette
Securities Corporation in the case of parties indemnified pursuant to
Section 7(a), and by the Company, in the case of parties indemnified
pursuant to Section 7(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any
action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than ten business
days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel
(in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement or compromise of, or consent
to the entry of judgment with respect to, any pending or threatened action
in respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action 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 the indemnified
party.
-18-
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages, liabilities and judgments (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 Shares or (ii) if the allocation provided by clause
7(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Underwriters shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the total price to the
public of the Shares, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company, or 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(d) 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or de-
-19-
fending any matter that could have given rise to such losses, claims, damages,
liabilities or judgments. 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 Shares 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 such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective number
of Shares purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
Section 8. Conditions of Underwriters' Obligations. The several
---------------------------------------
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., New York City time, on
the date of this Agreement; and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been commenced or shall be pending before or
contemplated by the Commission.
(c) On or after the date hereof there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating of any of the
Company's securities (including, without limitation,
-20-
the placing of any securities on negative or developing watch or negative
or developing outlook) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Act.
(d) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by the Chairman of the Board or the Chief Operating
Officer and the Chief Financial Officer, in their capacities as the
Chairman of the Board or the Chief Operating Officer and the Chief
Financial Officer of the Company, confirming the matters set forth in
Sections 8(a), 8(b) and 8(c).
(e) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the
Company and its subsidiaries, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the Company nor any of its subsidiaries
shall have incurred any liability or obligation, direct or contingent, the
effect of which, in any such case described in clause 8(e)(i), 8(e)(ii) or
8(e)(iii), in your judgment, is material and adverse and, in your judgment,
makes it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and counsel for the Underwriters), dated the Closing Date, of
Goodwin, Proctor & Hoar LLP, counsel for the Company, to the effect that:
(i) each of the Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority
required to carry on its business as it is currently being conducted and to
own, lease and operate its properties;
(ii) each of the Company and its subsidiaries is duly qualified and is
in good standing as a foreign corporation
-21-
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole;
(iii) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable, and are owned by the Company, free and
clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature;
(iv) all of the outstanding shares of capital stock have been duly
authorized and validly issued and are fully paid, nonassessable and not
subject to any preemptive or similar rights;
(v) the Shares to be issued and sold by the Company hereunder have
been duly authorized, and when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will be validly
issued, fully paid and nonassessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and except as
rights to indemnity and contribution hereunder may be limited by applicable
law;
(vii) the authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof
contained in the Prospectus;
(viii) the Registration Statement was declared effective under the Act;
the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Rules and Regulations specified in such opinion on
the date specified therein; no stop order suspending its ef-
-22-
fectiveness has been issued and, to the best of such counsel's knowledge,
no proceedings for that purpose are pending or threatened by the Commission;
(ix) neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws and, to the best of such counsel's
knowledge after due inquiry, neither the Company nor any of its subsidiaries
is in default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of indebtedness
or in any other agreement, indenture or instrument material to the conduct of
the business of the Company and its subsidiaries, taken as a whole, to which
the Company or any of its subsidiaries is a party or by which it or any of
its subsidiaries or their respective property is bound;
(x) the execution, delivery and performance of this Agreement by the
Company, compliance by the Company with all of the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as such may be
required under the Act or other securities or Blue Sky laws) and will not
conflict with or constitute a breach of any of the terms or provisions of, or
a default under, the charter or by-laws of the Company or any of its
subsidiaries, or any agreement, indenture or other instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or their respective properties are bound, or violate or
conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Company or any of its subsidiaries or their
respective properties;
(xi) after due inquiry, such counsel does not know of any legal or
governmental proceeding pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of their respective property is
subject that is required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or other document
which is required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the Registration
Statement that is not described or filed as required;
-23-
(xii) to the best of such counsel's knowledge, after due inquiry, neither
the Company nor any of its subsidiaries has violated any Environmental Laws,
nor any federal or state law relating to discrimination in the hiring,
promotion or pay of employees nor any applicable federal or state wages and
hours laws, nor any provisions of ERISA or the rules and regulations
promulgated thereunder, which in each case might result in any material
adverse change in the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole;
(xiii) the Company and each of its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory authorities
("permits"), including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its business in the manner described in the
Prospectus; to the best of such counsel's knowledge, after due inquiry, the
Company and each of its subsidiaries has fulfilled and performed all of its
material obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the rights
of the holder of any such permit, subject in each case to such qualification
as may be set forth in the Prospectus; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries;
(xiv) the Company is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(xv) to the best of such counsel's knowledge, after due inquiry, no
holder of any security of the Company has any right to require registration
of shares of Common Stock or any other security of the Company;
(xvi) to the best of such counsel's knowledge, after due inquiry, except
as otherwise set forth in the Registration Statement or such as are not
material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the Company
and each of its subsidiaries has good and marketable title, free and clear of
all liens, claims, encumbrances and restrictions except liens for taxes not
yet
-24-
due and payable, to all property and assets described in the Registration
Statement as being owned by it;
(xvii) to the best of such counsel's knowledge, after due inquiry, all
leases to which the Company or any of its subsidiaries is a party are valid
and binding and no default has occurred or is continuing thereunder, which
might result in any material adverse change in the business, prospects,
financial condition or results of operation of the Company and its
subsidiaries taken as a whole, and the Company and its subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not materially interfere
with the use made by the Company or such subsidiary;
(xviii) (1) the Registration Statement and the Prospectus and any supplement
or amendment thereto (except for financial statements as to which no opinion
need be expressed) comply as to form in all material respects with the Act,
and (2) such counsel believes that (except for financial statements, as
aforesaid) the Registration Statement and the prospectus included therein at
the time the Registration Statement became effective did not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and that the Prospectus, as amended or supplemented, if
applicable (except for financial statements, as aforesaid) does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
In giving such opinion with respect to the matters covered by clause
(xvii) such counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification except as
specified.
The opinion of Goodwin Proctor & Hoar LLP described in paragraph (d)
above shall be rendered to you at the request of the Company and shall so state
therein .
(g) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Cahill Gordon & Reindel,
-25-
counsel for the Underwriters, as to such matters as the Underwriters may
reasonably require.
(h) You shall have received a letter on and as of the Closing Date, in form
and substance satisfactory to you, from each of the Independent Public
Accountants, with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus and
substantially in the form and substance of the letters delivered to you by
the Independent Public Accountants on the date of this Agreement.
(i) The Company shall not have failed at or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company at or prior to the Closing Date.
(j) The Company shall have consummated the Note Offering.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of such Additional
Shares and other matters related to the issuance of such Additional Shares.
Section 9. Effectiveness of Agreement and Termination. This Agreement
------------------------------------------
shall become effective upon the execution and delivery of this Agreement by the
parties hereto .
(a) This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment,
is material and adverse and would, in your judgment, make it impracticable to
market the Shares on the terms and in the manner contemplated in the
Prospectus, (ii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the
Chicago Board of Trade or the Nasdaq National Market or limitation on prices
for securities on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of
-26-
any securities of the Company on any exchange or in the over-the-counter
market, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority that in your opinion materially and adversely affects,
or will materially and adversely affect, the business, prospects, financial
condition or results of operations of the Company and its subsidiaries, taken
as a whole, (v) the declaration of a banking moratorium by either federal or
New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal
affairs that in your opinion has a material adverse effect on the financial
markets in the United States.
(b) If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, that it or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, that such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion that the number of Firm
Shares set forth opposite its name in Schedule I bears to the total number of
Firm Shares which all the non-defaulting Underwriters, as the case may be,
have agreed to purchase, or in such other proportion as you may specify, to
purchase the Firm Shares or Additional Shares, as the case may be, that such
defaulting Underwriter or Underwriters, as the case may be, agreed but failed
or refused to purchase on such date; provided that in no event shall the
number of Firm Shares or Additional Shares, as the case may be, that any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
number of Firm Shares or Additional Shares, as the case may be, without the
written consent of such Underwriter. If on the Closing Date any Underwriter
or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Shares to be purchased on such
date by all Underwriters and arrangements satisfactory to you and the Company
for purchase of such Shares are not made within 48
-27-
hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter and the Company. In any such case
that does not result in termination of this Agreement, either you or the
Company shall have the right to postpone the Closing Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or
arrangements may be effected. If, on an Option Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to
be purchased on such date, the non-defaulting Underwriters shall have the
option to (i) terminate their obligation hereunder to purchase such
Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase on such date in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
Section 10. Miscellaneous. Notices given pursuant to any provision of
-------------
this Agreement shall be addressed as follows: (a) if to the Company, to OCI
Holdings Corporation, P.O. Box 1580, 512 Taylor Street, Corinth, Mississippi
38834-4853, (b) if to any Underwriter or to you, to you c/o Donaldson, Lufkin &
Jenrette Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
(a) The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the officers or directors
of any underwriter, any person controlling any Underwriter, the Company, the
officers or directors of the Company or any controlling person of the
Company, (ii) acceptance of the Shares and payment for them hereunder and
(iii) termination of this Agreement.
-28-
(b) If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, the Company agrees to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) reasonably incurred by them.
(c) Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of
this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Shares from any of the several Underwriters merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
-29-
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
OCI HOLDINGS CORPORATION
By:
--------------------------------
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
ALEX. BROWN & SONS
SALOMON BROTHERS INC
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By
--------------------------
SCHEDULE I
----------
Number of Firm Shares
Underwriters to be Purchased
- ------------ ---------------------
Donaldson, Lufkin & Jenrette
Securities Corporation
Alex. Brown & Sons
Salomon Brothers Inc
--------------------
Total
ANNEX I
-------
Required Lock-ups
-----------------