EXHIBIT 1
CHIREX INC.
DEBT SECURITIES,
PREFERRED AND COMMON STOCK
UNDERWRITING AGREEMENT
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1. Introductory. ChiRex Inc., a Delaware corporation ("COMPANY"),
proposes to issue and sell from time to time certain of its unsecured debt
securities, preferred stock and common stock, $.01 par value ("COMMON STOCK")
registered under the registration statement referred to in Section 2(a)
("REGISTERED SECURITIES"). The Registered Securities constituting debt
securities will be issued under an indenture, dated as of [ ], 1998
("INDENTURE"), between the Company and United States Trust Company of New York,
as Trustee, in one or more series, which series may vary as to interest rates,
maturities, redemption provisions, selling prices and other terms. The
Registered Securities constituting preferred stock may be issued in one or more
series, which series may vary as to dividend rates, redemption provisions,
selling prices and other terms. Particular series or offerings of Registered
Securities will be sold pursuant to a Terms Agreement referred to in Section 3,
for resale in accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "OFFERED SECURITIES". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"UNDERWRITERS" of such securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "REPRESENTATIVES"; provided, however, that
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if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-__________), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("COMMISSION") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "REGISTRATION
STATEMENT", and the prospectus included in such Registration Statement, as
supplemented and as contemplated by Section 3 to reflect the terms of the
Offered Securities (if they are debt securities or preferred stock) and the
terms of the offering of the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)")
under the Securities Act of 1933 ("ACT"), including all material
incorporated by reference therein, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939
("TRUST INDENTURE ACT") and the rules and regulations of the Commission
("RULES AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date of each Terms Agreement referred to in Section 3, the Registration
Statement and the Prospectus will conform in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(d) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock of each subsidiary
owned by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(e) If the Offered Securities are debt securities: The Indenture has
been duly authorized and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; and when the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date (as defined below) or pursuant to Delayed Delivery
Contracts (as hereinafter defined), the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, authenticated, issued and delivered and will conform to the
description thereof contained in the Prospectus and the Indenture and such
Offered Securities will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) If the Offered Securities are preferred stock: The Offered
Securities have been duly authorized and, when the Offered Securities have
been delivered and paid for in accordance with the Terms Agreement on the
Closing Date, such Offered Securities will have been validly issued, fully
paid and nonassessable and will conform to the description thereof
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities.
(g) If the Offered Securities are Common Stock: The Offered
Securities and all other outstanding shares of capital stock of the Company
have been duly authorized; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been delivered and paid
for in accordance with the Terms Agreement on the Closing Date, such
Offered Securities will have been validly issued, fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights
with respect to the Offered Securities.
(h) If the Offered Securities are convertible: When the Offered
Securities are delivered and paid for pursuant to the Terms Agreement on
the Closing Date, such Offered Securities will be convertible into Common
Stock of the Company in accordance with their terms (if the Offered
Securities are preferred stock) or the Indenture (if the Offered Securities
are debt securities); the shares of Common Stock initially issuable upon
conversion of such Offered Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Common Stock.
(i) If the Offered Securities are Common Stock or are convertible
into Common Stock: Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment.
(j) If the Offered Securities are Common Stock or are convertible
into Common Stock: There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(k) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act and, if the Offered Securities
are debt securities, the Trust Indenture Act and such as may be required
under state securities laws.
(l) The execution, delivery and performance of the Indenture (if the
Offered Securities are debt securities), the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
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Contracts and the issuance and sale of the Offered Securities and, if the
Offered Securities are debt securities or preferred stock, compliance with
the terms and provisions thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or any agreement
or instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary, and the Company has full
power and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement).
(m) The Terms Agreement (including the provisions of this Agreement)
and, if the Offered Securities are debt securities or preferred stock, any
Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(n) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
(o) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(p) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(q) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(r) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a material adverse effect on
the Company and its subsidiaries taken as a whole; and the Company is not
aware of any pending investigation which might lead to such a claim.
(s) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the condition (financial
or other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole, or would materially and adversely affect
the ability of the Company to perform its obligations under the Indenture
(if the Offered Securities are debt securities), the Terms Agreement
(including the provisions of this Agreement) or any Delayed Delivery
Contracts, or which are otherwise material in the context of the sale of
the Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(t) The financial statements included in the Registration Statement
and Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the
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Prospectus, such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States applied
on a consistent basis; any schedules included in the Registration Statement
present fairly the information required to be stated therein; and if pro
forma financial statements are included in the Registration Statement and
Prospectus: the assumptions used in preparing the pro forma financial
statements included in the Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the related
pro forma adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement amounts.
(u) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated
by the Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(v) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("TERMS AGREEMENT") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount or number
of shares to be purchased by each Underwriter, the purchase price to be paid by
the Underwriters and (if the Offered Securities are debt securities or preferred
stock) the terms of the Offered Securities not already specified (in the
Indenture, in the case of Offered Securities that are debt securities),
including, but not limited to, interest rate (if debt securities), dividend rate
(if preferred stock), maturity (if debt securities), any redemption provisions
and any sinking fund requirements and whether any of the Offered Securities may
be sold to institutional investors pursuant to Delayed Delivery Contracts (as
defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Underwriter first named in the Terms
Agreement (the "Lead Underwriter") and the Company agree as the time for payment
and delivery, being herein and in the Terms Agreement referred to as the
"Closing Date"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering,
other than Contract Securities for which payment of funds and delivery of
securities shall be as hereinafter provided. The obligations of the
Underwriters to purchase the Offered Securities will be several and not joint.
It is understood that the Underwriters propose to offer the Offered Securities
for sale as set forth in the Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("DELAYED DELIVERY
CONTRACTS") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount or number of shares of Offered Securities to be sold pursuant
to Delayed Delivery Contracts ("CONTRACT SECURITIES"). The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered Securities
to be purchased by the several Underwriters and the aggregate principal amount
or number of shares of Offered Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount or number of
shares of Offered Securities set forth opposite each Underwriter's name in such
Terms Agreement, except to the extent that the Lead Underwriter determines that
such reduction shall be otherwise than pro rata and so advise the Company. The
Company will advise the Lead Underwriter not later than the business day prior
to the Closing Date of the principal amount or number of shares of Contract
Securities.
If the Offered Securities are debt securities and the Terms Agreement
specifies "Book-Entry Only" settlement or otherwise states that the provisions
of this paragraph shall apply, the Company will deliver against payment of the
purchase price the Offered Securities in the form of one or more permanent
global securities in
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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 any permanent global securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Offered Securities
shall be made by the Underwriters (if the Terms Agreement specifies that the
Offered Securities will not trade in DTC's Same Day Funds Settlement System) by
certified or official bank check or checks in New York Clearing House (next day)
funds or (if the Terms Agreement specifies that the Offered Securities will
trade in DTC's Same Day Funds Settlement System) in Federal (same day) funds by
official check or checks or wire transfer to an account in New York previously
designated to the Lead Underwriter by the Company at a bank acceptable to the
Lead Underwriter, in each case drawn to the order of the Company at the place of
payment specified in the Terms Agreement on the Closing Date, against delivery
to the Trustee as custodian for DTC of the Global Securities representing all of
the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to counsel for the Underwriters, one signed
copy of the registration statement relating to the Registered Securities,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by the Lead Underwriter, subparagraph (5)) not later than the
second business day following the execution and delivery of the Terms
Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Lead Underwriter a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company will
also advise the Lead Underwriter promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will
notify the Lead Underwriter of such event and will promptly prepare and
file with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests. The Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and (if the Offered Securities are debt securities or
preferred stock) the determination of their eligibility for investment
under the laws of such jurisdictions as the Lead Underwriter designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) During the period of 10 years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act
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of 1934 or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as the Lead Underwriter may reasonably
request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), for any filing fees or other expenses (including fees and
disbursements of counsel) in connection with qualification of the
Registered Securities for sale and (if the Offered Securities are debt
securities or preferred stock) any determination of their eligibility for
investment under the laws of such jurisdictions as the Lead Underwriter may
designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Offered
Securities (if they are debt securities or preferred stock), for any
applicable filing fee incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Registered Securities, for any travel expenses of the Company's officers
and employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of Registered
Securities and for expenses incurred in distributing the Prospectus, any
preliminary prospectuses, any preliminary prospectus supplements or any
other amendments or supplements to the Prospectus to the Underwriters.
(i) If the Offered Securities are debt securities or preferred stock,
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having
a maturity of more than one year from the date of issue (if the Offered
Securities are debt securities) or any series of preferred stock issued or
guaranteed by the Company (if the Offered Securities are preferred stock),
or publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the Lead
Underwriter for a period beginning at the time of execution of the Terms
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
(j) If the Offered Securities are Common Stock or are convertible
into Common Stock, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional shares of its Common Stock or securities convertible into or
exchangeable or exercisable for any shares of its Common Stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of the Lead Underwriter for a
period beginning at the time of execution of the Terms Agreement and ending
the number of days after the Closing Date specified under "Blackout" in the
Terms Agreement, except grants of employee stock options pursuant to the
terms of a plan in effect on the date of the Terms Agreement, issuances of
Common Stock pursuant to the exercise of such options or the exercise of
any other employee stock options outstanding on the date of the Terms
Agreement or issuances of Common Stock pursuant to the Company's dividend
reinvestment plan.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of Arthur Andersen confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any schedules
and any summary of earnings examined by them and included in the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on any unaudited
financial statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
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(A) the unaudited financial statements, if any, and any
summary of earnings included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to such
unaudited financial statements and summary of earnings for them
to be in conformity with generally accepted accounting
principles;
(B) if any unaudited "capsule" information is contained in
the Prospectus, the unaudited consolidated net sales, net
operating income, net income and net income per share amounts or
other amounts constituting such "capsule" information and
described in such letter do not agree with the corresponding
amounts set forth in the unaudited consolidated financial
statements or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
statements of income;
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of the Terms
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of the
latest available balance sheet read by such accountants, there
was any decrease in consolidated [net current assets or] net
assets, as compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Prospectus to the closing date
of the latest available income statement read by such accountants
there were any decreases, as compared with the corresponding
period of the previous year and with the period of corresponding
length ended the date of the latest income statement included in
the Prospectus, in consolidated net sales, net operating income
in the total or (if the Offered Securities are Common Stock or
are convertible into Common Stock) per share amounts of
consolidated income before extraordinary items or net income (if
the Offered Securities are debt securities) in the ratio of
earnings to fixed charges or (if the Offered Securities are
preferred stock) in the ratio of earnings to fixed charges and
preferred stock dividends combined;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other),
7
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including any Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities or preferred stock of the Company (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal, New York, or United Kingdom authorities; or (v)
any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including any Representatives, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities.
(d) (1) The Representatives shall have received an opinion, dated the
Closing Date, of Cravath, Swaine & Moore, counsel for the Company,
substantially to the effect that:
(i) Based solely on a certificate from the Secretary of State of
Delaware, the Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its businesses as described in the Prospectus.
Based solely on certificates from the Secretary of State of the
Commonwealth of Massachusetts, the Secretary of State of the State of
Connecticut and an officer of the Company, the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in the United States in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, other than jurisdictions in which the
failure so to qualify would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(ii) Based solely on a certificate from the Secretary of State
of Delaware, ChiRex America Inc. is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware. ChiRex America Inc. has full corporate power and authority
to own, lease and operate its properties and conduct its businesses as
described in the Prospectus. Based solely on a certificate from the
Secretary of State of the Commonwealth of Massachusetts and a
certificate from an officer of the Company, ChiRex America Inc. is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in the United States in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, other than jurisdictions in which the
failure so to qualify would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(iii) Based solely on a certificate from the Secretary of State
of Delaware, ChiRex Technology Center Inc. is a corporation duly
incorporated, validly existing and in good standing under the laws of
the State of Delaware, with full corporate power and authority to own,
lease and operate its properties and conduct its businesses as
described in the Prospectus. Based solely on a certificate from the
Secretary of State of the Commonwealth of Massachusetts and a
certificate from an officer of the Company, ChiRex Technology Center
Inc. is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in the United States in
which the ownership or leasing of its properties or the conduct of its
business requires such qualification, other than jurisdictions in
which the failure so to qualify would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(iv) With respect to Debt Securities to be issued under the
Indenture, when (A) the Trustee is qualified to act as Trustee under
the Indenture, (B) the Trustee has duly executed and delivered the
Indenture, (C) the Indenture has been duly authorized and validly
executed and delivered by the Company to the Trustee, (D) the
Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended, (E) the Board of Directors of the Company or a duly
constituted and acting committee thereof (such Board of Directors or
committee being hereinafter referred to as the "Board") has taken all
necessary corporate action to approve the issuance and terms of such
Debt Securities, the terms of the offering thereof and related
matters, and (F) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the provisions
of the Indenture, and the applicable definitive purchase, underwriting
or similar agreement approved by the Board upon payment of the
consideration therefor provided for therein, such Debt Securities will
be validly issued and will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance with their
8
terms (subject to applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect and subject to
general principles of equity, regardless of whether considered in a
proceeding in equity or at law);
(v) With respect to shares of Preferred Stock, when both (A) the
Board has taken all necessary corporate action to approve the issuance
and terms of the shares of Preferred Stock, the terms of the offering
thereof and related matters, including the adoption of a Certificate
of Designation relating to such Preferred Stock and the filing of the
Certificate of Designation with the Secretary of State of the State of
Delaware, and (B) certificates representing the shares of Preferred
Stock have been duly executed, countersigned, registered and delivered
either (i) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment
of the consideration therefor (not less than the par value of the
Preferred Stock) provided for therein or (ii) upon conversion or
exercise of any other Offered Security, in accordance with the terms
of such Offered Security or the instrument governing such Offered
Security providing for such conversion or exercise as approved by the
Board, for the consideration approved by the Board (not less than the
par value of the Preferred Stock), then the shares of Preferred Stock
will be validly issued, fully paid and nonassessable;
(vi) With respect to Depositary Shares, when (A) the Board has
taken all necessary corporate action to approve the issuance and terms
of the Depositary Shares, the terms of the offering thereof and
related matters, including the adoption of a Certificate of
Designation relating to the Preferred Stock underlying such Depositary
Shares and the filing of the Certificate of Designation relating to
the Preferred Stock underlying such Depositary Shares with the
Secretary of State of the State of Delaware, (B) the Deposit Agreement
or Agreements relating to the Depositary Shares and the related
depositary receipts have been duly authorized and validly executed and
delivered by the Company and the Depositary appointed by the Company,
(C) the shares of Preferred Stock underlying such Depositary Shares
have been deposited with a bank or trust company (which meets the
requirements for the Depositary set forth in the Registration
Statement) under the applicable Deposit Agreement, and (D) the
depositary receipts representing the Depositary Shares have been duly
executed, countersigned, registered and delivered in accordance with
the appropriate Deposit Agreement and the applicable definitive
purchase, underwriting or similar agreement approved by the Board upon
payment of the consideration therefor provided for therein, the
Depositary Shares will be validly issued;
(vii) With respect to shares of Common Stock, when both (A) the
Board has taken all necessary corporate action to approve the issuance
of and the terms of the offering of the shares of Common Stock and
related matters and (B) certificates representing the shares of Common
Stock have been duly executed, countersigned, registered and delivered
either (i) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment
of the consideration therefor (not less than the par value of the
Common Stock) provided for therein or (ii) upon conversion or exercise
of any other Offered Security, in accordance with the terms of such
Offered Security or the instrument governing such Offered Security
providing for such conversion or exercise as approved by the Board,
for the consideration approved by the Board (not less than the par
value of the Common Stock), then the shares of Common Stock will be
validly issued, fully paid and nonassessable;
(viii) With respect to the Warrants, when (A) the Board has
taken all necessary corporate action to approve the creation of and
the issuance and terms of the Warrants, the terms of the offering
thereof and related matters, (B) the Warrant Agreement or Agreements
relating to the Warrants have been duly authorized and validly
executed and delivered by the Company and the warrant agent appointed
by the Company and (C) the Warrants or certificates representing the
Warrants have been duly executed, countersigned, registered and
delivered in accordance with the appropriate Warrant Agreement or
Agreements and the applicable definitive purchase, underwriting or
similar agreement approved by the Board upon payment of the
consideration therefor provided for therein, the Warrants will be
validly issued;
(ix) If the Offered Securities are Common Stock or are
convertible into Common Stock: The Company's authorized equity
capitalization is as set forth in the Prospectus; the Shares conform
in all material respects to the description thereof contained in the
Registration Statement and Prospectus; and holders of outstanding
shares of Common Stock of the Company are not entitled to statutory or
contractual preemptive rights in connection with the issuance of the
Shares;
9
(x) If the Offered Securities are Common Stock or are
convertible into Common Stock: The Shares have been duly and validly
authorized and, when issued and delivered to and paid for by the
Underwriters pursuant to the Terms Agreement, will be validly issued,
fully paid and nonassessable. The Shares have been duly authorized for
trading on The Nasdaq Stock Market's National Market. The certificates
for the Shares are in valid and sufficient form;
(xi) If the Offered Securities are Common Stock or are
convertible into Common Stock: Except as disclosed in the Prospectus,
there are no contracts, agreements or understandings known to us
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act;
(xii) No authorization, approval or other action by, and no
notice to, consent of, order of, or filing with, any United States
Federal, New York or, to the extent required under the General
Corporation Law of the State of Delaware, Delaware governmental agency
or body or any court is required for the consummation of the
transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Offered Securities by the Company, except such as have been
obtained and made under the Act and, if the Offered Securities are
debt securities, the Trust Indenture Act and such as may be required
under the blue sky laws of any jurisdication in connection with the
purchase and distribution of the Offered Securities by the
Underwriters;
(xiii) None of the issue and sale of the Offered Securities, the
consummation of any other of the transactions contemplated by the
Terms Agreement and the performance of the Terms Agreement (i) will
conflict with, result in a breach of, or constitute a default under,
the Certificate of Incorporation, as amended, or the Amended and
Restated By-laws of the Company, or the terms of any indenture or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or bound and which is listed as an exhibit to
the Company's Annual Report on Form 10-K for [ ], or (ii) will
contravene any law, rule or regulation of the United States or the
State of New York or the General Corporation Law of the State of
Delaware, or, to our knowledge, any order or decree of any court or
government agency or instrumentality. In connection with the
foregoing, we point out that certain of the agreements referred to in
clause (i) above are or may be governed by laws other than the laws of
the State of New York. For purposes of the opinion expressed in this
paragraph, however, we have assumed that all such agreements are
governed by and would be interpreted in accordance with the laws of
the State of New York;
(xiv) The Registration Statement has become effective under the
Act, as of [ ], and thereupon the offering of the Offered
Securities as contemplated by the Prospectus became registered under
the Securities Act, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated under
the Act, and the work of such counsel did not disclose any information
that gave such counsel reason the believe that: the registration
statement relating to the Registered Securities, as of its effective
date, the Prospectus, as of the date of the Terms Agreement, and any
amendment or supplement thereto, as of its date, was not appropriately
responsive in all material respects to the requirements of the Act and
(if the Offered Securities are Debt Securities) the Trust Indenture
Act and the Rules and Regulations or such registration statement, as
of its effective date, the Registration Statement, as of the date of
the Terms Agreement or as of the Closing Date, or any amendment
thereto, as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date or as of the Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express
10
no opinion as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus;
(xv) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts and, if the Offered
Securities are debt securities or preferred stock, any Delayed
Delivery Contracts have been duly authorized, executed and delivered
by the Company;
(xvi) The statements made in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute
summaries of the terms of the Offered Securities, and under the
caption "Certain United States Tax Consequences to Non-United States
Holders", insofar as they purport to describe the material tax
consequences of an investment in Offered Securities, fairly summarize
the matters therein described;
(xvii) The Registration Statement became effective as of [ ],
and thereupon the offering of the Offered Securities as contemplated
by the Prospectus became registered under the Securities Act and, to
our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the
Securities Act; and
(xviii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
For purposes of the opinions delivered pursuant to clauses (i) through
(xviii) of this Section 6(d)(1), the term "subsidiaries" shall not include
either ChiRex (Holdings) Limited, ChiRex (Dudley) Limited or ChiRex (Annan)
Limited.
(2) The Representatives shall have received an opinion, dated the
Closing Date, of Dibb Lupton Alsop, U.K. counsel for the Company and its
subsidiaries, substantially to the effect that:
(i) ChiRex (Holdings) Limited ("HOLDINGS"), ChiRex (Dudley)
Limited ("DUDLEY") and ChiRex (Annan) Limited ("ANNAN") have been duly
incorporated and are validly existing as corporations in good standing
under the laws of England and Wales, and have full corporate power and
authority to conduct their business as described in the Registration
Statement;
(ii) All of the issued shares of capital stock of Holdings,
Dudley and Annan have been duly and validly authorized and issued, are
fully paid and none of the shareholders holding such shares have any
liability to contribute to Holdings, Dudley and Annan any further
funds in respect of or relating to their acquisition of such shares.
(iii) To such counsel's knowledge, neither Holdings, Dudley or
Annan are in violation of its Memorandum or Articles of Association.
(e) The Representatives shall have received from . counsel
for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the
Offered Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, . may rely as to the incorporation of the Company and all
other matters governed by United Kingdom law upon the opinion of Dibb
Lupton Alsop referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such
11
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Company in this
Agreement are true and correct, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date,that no stop order
suspending the effectiveness of the Registration Statetement or of any part
thereof has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission and that, subsequent to
the date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the
Closing Date, of Arthur Andersen which meets the requirements of
subsections (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three business days prior
to the Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in the Terms Agreement.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in the Terms Agreement.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity
12
could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (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 from the offering of the Offered
Securities or (ii) if the allocation provided by clause (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 (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities 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 shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered 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
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 in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
has signed the Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock) of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount (if debt securities) or number of shares (if
preferred stock or Common Stock) of Offered Securities, the Lead Underwriter may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount (if debt securities) or number of shares (if preferred stock or
Common Stock) of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount (if debt securities) or
number of shares (if preferred stock or Common Stock) of Offered Securities and
arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. If the Offered
Securities are debt securities or preferred stock, the respective commitments of
the several Underwriters for the purposes of this Section shall be determined
without regard to reduction in the respective Underwriters' obligations to
purchase the principal amounts (if debt securities) or numbers of shares (if
preferred stock) of the Offered Securities set forth opposite their names in the
Terms Agreement as a result of Delayed Delivery Contracts entered into by the
Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person,
13
and will survive delivery of and payment for the Offered Securities. If the
Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 4 and the respective obligations of the Company and the
Underwriters pursuant to Section 6 shall remain in effect. If the purchase of
the Offered Securities by the Underwriters is not consummated for any reason
other than solely because of the termination of the Terms Agreement pursuant to
Section 7 or the occurrence of any event specified in clause (iii), (iv) or (v)
of Section 5(c), the Company will reimburse the Underwriters for all out-of-
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
them at their address furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at 300 Atlantic Street, Suite 402, Stamford,
CT 06901, Attention: Michael Griffith.
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to the Terms Agreement (including the
provisions of this Agreement) or the transactions contemplated thereby.
14
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on _____________________________________, 19___/(1)/)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
ChiRex Inc.
c/o [ ]
Eleven Madison Avenue
New York, N.Y. 10010-3629
Attention: Investment Banking Department - Transactions Advisory Group
Gentlemen:
The undersigned hereby agrees to purchase from ChiRex Inc., a Delaware
corporation ("COMPANY"), and the Company agrees to sell to the undersigned, [If
one delayed closing, insert--as of the date hereof, for delivery on
______________, 19__ ("DELIVERY DATE"),]
[$]..............[shares]
- --principal amount--of the Company's [Insert title of securities]
("SECURITIES"), offered by the Company's Prospectus dated __________, 19__ and a
Prospectus Supplement dated _____________________, 19__ relating thereto,
receipt of copies of which is hereby acknowledged, at--___% of the principal
amount thereof plus accrued interest, if any,--$_____ per share plus accrued
dividends, if any,--and on the further terms and conditions set forth in this
Delayed Delivery Contract ("CONTRACT").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the--principal--amounts set
forth below:
PRINCIPAL AMOUNT
- ----------------
NUMBER
DELIVERY DATE OF SHARES
- -----------------------
.............................................. .............
.............................................. .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day) funds
at the office of ____________________ at ______.M. on--the--such--Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned--for delivery on such Delivery Date--in definitive [If debt issue,
insert--fully registered] form and in
- ---------------------------
/(1)/ Insert date which is third full business day prior to Closing Date
under the Terms Agreement.
15
such denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less than
five full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and
accept payment for, and the obligation of the undersigned to take delivery of
and make payment for, Securities on--the--each--Delivery Date shall be subject
only to the conditions that (1) investment in the Securities shall not at--the--
such--Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall have
sold to the Underwriters the total--principal amount--number of shares--of the
Securities less the--principal amount---number of shares--thereof covered by
this and other similar Contracts. The undersigned represents that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which governs
such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
......................................................
(Name of Purchaser)
By....................................................
......................................................
(Title of Signatory)
......................................................
......................................................
(Address of Purchaser)
Accepted, as of the above date.
[Insert Name of Issuer]
By....................................................
[Insert Title]
16
CHIREX INC.
("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
---------------
____________, 19__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 333-____) ("UNDERWRITING
AGREEMENT"), the following securities ("OFFERED SECURITIES") on the following
terms:
TITLE: [__%] [Floating Rate]--Notes--Debentures--Bonds--Due____________.
PRINCIPAL AMOUNT: $___________.
INTEREST: [__% per annum, from __________, 19__, payable semiannually on
__________ and ___________, commencing ___________ _, 19__, to holders of
record on the preceding _____________ or __________, as the case may be.]
[Zero coupon.]
MATURITY: _____________, 19__.
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market Inc.'s
National Market.]
DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
_____________, 19__. Underwriters' fee is ___% of the principal amount of
the Contract Securities.]
PURCHASE PRICE: ______% of principal amount, plus accrued interest[, if
any,] from _______________, 19__.
EXPECTED REOFFERING PRICE: ___% of principal amount, subject to change by
the [Representative[s] [Underwriters].
CLOSING: ____________A.M. on ________________, 19_____, at _____________,
in Federal (same day) funds.
SETTLEMENT AND TRADING: [Physical certificated form.] [Book-Entry Only via
DTC. The Offered Securities will trade in DTC's Same Day Funds Settlement
System.]
BLACKOUT: Until _____ days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
17
The respective principal amounts of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Offered Securities will be made available for checking and
packaging at the office of ________________________ at least 24 hours prior
to the Closing Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom
of the prospectus supplement cover page concerning the terms of the
offering by the Underwriters, the legend concerning over-allotments--and--,
--stabilizing [and passive market making] on the inside front cover page of
the prospectus supplement--and--, --the concession and reallowance figures
appearing in the paragraph under the caption "Underwriting" in the
prospectus supplement [If paragraph regarding passive market making is
included, insert--and the information contained in the paragraph under the
caption "Underwriting" in the prospectus supplement] [If applicable,
insert--; and (ii) the following information in the prospectus supplement
furnished on behalf of [insert name of Underwriter]: [insert description of
information, such as material relationship disclosure under the caption
"Underwriting" in the prospectus supplement].
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
[Insert Name of Issuer]
By..........................................
[Insert title]__________________
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form. If co-representative,
use second.]
[ ]
By..................................................................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
[ ]
..........................................................
.........................................................,
[Acting on behalf of themselves and as the
Representatives of the several Underwriters.]
By [ ]
By..................................................................
[Insert title]
18
SCHEDULE A
UNDERWRITER PRINCIPAL
----------- AMOUNT
---------
[ ]................................. $___________
[ ]................................. ___________
-----------
Total........................... $
===========
19
CHIREX INC.
("COMPANY")
PREFERRED--COMMON--STOCK
TERMS AGREEMENT
---------------
___ ________, 19__
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 33-____) ("UNDERWRITING
AGREEMENT"), the following securities ("OFFERED SECURITIES") on the following
terms:
TITLE:
NUMBER OF SHARES:
DIVIDEND RATE:
/(1)/ OPTIONAL REDEMPTION:
/(1)/ SINKING FUND:
/(1)/ LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
/(1)/ DELAYED DELIVERY CONTRACTS: [None.] [Delivery Date[s] shall be
_____________, 19__. Underwriters' fee is $_________ per share of the
Contract Securities.]
PURCHASE PRICE: $______ per share [If preferred stock issue, insert--
plus accrued dividends[, if any,] from _______________, 19__].
EXPECTED REOFFERING PRICE: $___ _ per share, subject to change by the
[Representative[s]] [Underwriters].
CLOSING: ____________A.M. on ________________, 19______, at
_______________, in New York Clearing House (next day) funds.
UNDERWRITER[S']['S] COMPENSATION: $_______ payable to the
[Representative[s] for the proportionate accounts of the]
Underwriter[s] on the Closing Date.
BLACKOUT: Until ___days after the Closing Date.
[NAME[S] AND ADDRESS[ES] OF [REPRESENTATIVE[S]] [UNDERWRITER[S]]:]
The respective numbers of shares of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
20
The provisions of the Underwriting Agreement are incorporated herein
by reference.
The Offered Securities will be made available for checking and
packaging at the office of _________ at least 24 hours prior to the Closing
Date.
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments--and--, --stabilizing [and
passive market making] on the inside front cover page of the prospectus
supplement--and--, --the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement [If
paragraph regarding passive market making is included, insert--and the
information contained in the paragraph under the caption "Underwriting" in the
prospectus supplement] [If applicable, insert--; and (ii) the following
information in the prospectus supplement furnished on behalf of [insert name of
Underwriter]: [insert description of information, such as material relationship
disclosure under the caption "Underwriting" in the prospectus supplement].
21
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
[Insert Name of Issuer]
By..........................................
[Insert title]__________________
The foregoing Terms Agreement is hereby confirmed and accepted as of the date
first above written.
[If no co-representative, use first confirmation form. If co-representative,
use second.]
[ ]
By..................................................................
[Insert title]
[Acting on behalf of itself and as the
Representative of the several
Underwriters.]
[ ]
..........................................................
.........................................................,
[Acting on behalf of themselves and as the
Representatives of the several Underwriters.]
By [ ]
By..................................................................
[Insert title]
22
SCHEDULE A
UNDERWRITER NUMBER
----------- OF
SHARES
------
[ ]............................. $___________
[ ]............................. ___________
----------
Total $
==========
23