Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Form S-3, Amendment No. 1 P. H. Glatfelter Company HTML 1.74M
2: EX-1 Form of Underwriting Agreement 30 127K
3: EX-15 Letter in Lieu of Consent Regarding Review Report 1 7K
4: EX-23.(B) Consent of Independent Registered Public 1 6K
Accounting Firm
EX-1 — Form of Underwriting Agreement
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EXHIBIT 1
6,500,000 SHARES
P.H. GLATFELTER COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
[-], 2004
CREDIT SUISSE FIRST BOSTON LLC
As Representative of the Several Underwriters,
Eleven Madison Avenue,
New York, NY 10010-3629
Dear Sirs:
1. Introductory. The shareholders listed in Schedule A hereto ("SELLING
SHAREHOLDERS") propose severally to sell an aggregate of 6,500,000 outstanding
shares ("FIRM SECURITIES") of the common stock, $0.01 par value ("SECURITIES")
of P.H. Glatfelter Company, a Pennsylvania corporation ("COMPANY"), and certain
of the Selling Shareholders also propose to sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 975,000 additional
outstanding shares ("OPTIONAL SECURITIES") of the Company's Securities as set
forth below. The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES". The Selling Shareholders hereby
agree with the Company and with the several Underwriters named in Schedule B
hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Shareholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters and the Selling Shareholders that:
(i) A registration statement (No. 333-117233) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (A) has
been declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional registration
statement is proposed to be filed with the Commission pursuant to Rule
462(b) and will become effective upon filing pursuant to such Rule and
upon such filing the Offered Securities will all have been duly registered
under the Act pursuant to the initial registration statement and such
additional registration statement. If the Company does not propose to
amend the initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it, and
if any post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of this
Agreement, "EFFECTIVE TIME" with respect to the initial registration
statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if the Company
has advised the Representative that it does not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing pursuant
to Rule 462(c), or (B) if the Company has advised the Representative that
it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the Representative
that it proposes to file one, "EFFECTIVE TIME" with respect to such
additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated by
reference therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter
referred to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT".
The form of prospectus relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule 424(b) ("RULE
424(b)") under the Act or (if no such filing is required) as included in a
Registration Statement, including all material incorporated by reference
in such prospectus, 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.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the 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, (B) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(C) on the date of this Agreement, the Initial Registration Statement and,
if the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Act and the Rules
and Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration Statement,
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the Initial Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by (i) any Selling Shareholder specifically for
use therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof or (ii) any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information is that described as
such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, 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.
(iv) Each subsidiary of the Company has been duly incorporated or
formed and is an existing corporation or other entity in good standing
under the laws of the jurisdiction of its incorporation, with power and
authority (corporate, limited liability company or 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 or other entity 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 or other equity interest of each subsidiary of
the Company has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock or other equity interest of each
subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly issued,
fully paid and nonassessable and conform to the description thereof
contained in the Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Securities.
(vi) 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.
(vii) 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 a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Securities have been approved for listing on the New York
Stock Exchange.
(ix) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement in connection with the sale of the Offered
Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws.
(x) The execution, delivery and performance of this Agreement, and
the consummation of the transactions herein contemplated 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
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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.
(xi) This Agreement has been duly authorized, executed and delivered
by the Company.
(xii) 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.
(xiii) 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
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
(xiv) 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.
(xv) 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.
(xvi) 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; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(xvii) 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, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement, 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.
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(xviii) The financial statements included in each Registration
Statement and the 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 such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis and the schedules included in each Registration Statement
present fairly the information required to be stated therein.
(xix) 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.
(xx) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system.
(xxi) The Company is not an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(xxii) The Company and each of its subsidiaries maintain 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; and
(iii) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(b) Each Selling Shareholder severally represents and warrants to, and
agrees with, the Company and the several Underwriters that:
(i) Such Selling Shareholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Shareholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered Securities
to be delivered by such Selling Shareholder on such Closing Date
hereunder; and upon the delivery of and payment for the Offered Securities
on each Closing Date hereunder the several Underwriters will acquire valid
and unencumbered title to the Offered Securities to be delivered by such
Selling Shareholder on such Closing Date.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the 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, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will
conform, in all respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statement therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement each conforms,
and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects to
the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement
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of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this Agreement:
on the Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading. The two preceding sentences
apply only to the extent that any statements in or omissions from a
Registration Statement or the Prospectus are based on written information
furnished to the Company by such Selling Shareholder specifically for use
therein, it being understood and agreed that the only such information is
that described as such in Section 7(b) hereof.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between such Selling Shareholder 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.
(iv) The sale of the Offered Securities by such Selling Shareholder
pursuant hereto is not prompted by any information concerning the Company
or any of its subsidiaries which is not set forth in the Prospectus or any
supplement thereto; provided, however, that with respect to information in
the possession of PNC Bank, National Association ("PNC"), in its capacity
as a trustee or co-trustee of the Selling Shareholders, the possession of
such information is intended to refer to the actual knowledge, after due
inquiry, but without further investigation, of the officers of PNC who
have been involved in the process of selling the Offered Securities to the
Underwriters.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Shareholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Shareholder, at
a purchase price of $ per share, that number of Firm Securities (rounded up
or down, as determined by Credit Suisse First Boston LLC ("CSFB") in its
discretion, in order to avoid fractions) obtained by multiplying the number of
Firm Securities set forth opposite the name of such Selling Shareholder in
Schedule A hereto by a fraction the numerator of which is the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule B hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities have been
placed in custody, for delivery under this Agreement, under Custody Agreements
made with Mellon Investor Services LLC, as custodian ("CUSTODIAN"). Each Selling
Shareholder agrees that the shares represented by the certificates held in
custody for the Selling Shareholders under such Custody Agreements are subject
to the interests of the Underwriters hereunder, that the arrangements made by
the Selling Shareholders for such custody are to that extent irrevocable, and
that the obligations of the Selling Shareholders hereunder shall not be
terminated by operation of law, whether by the death of any individual Selling
Shareholder or the occurrence of any other event, or in the case of a trust, by
the death of any trustee or trustees or the termination of such trust. If any
individual Selling Shareholder or any such trustee or trustees should die, or if
any other such event should occur, or if any of such trusts should terminate,
before the delivery of the Offered Securities hereunder, certificates for the
Offered Securities shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement as if such death or other event or
termination had not occurred, regardless of whether or not the Custodian shall
have received notice of such death or other event or termination.
The Custodian will deliver the Firm Securities to the Representative for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to CSFB drawn to the order of at the office
of Cravath, Swaine & Moore LLP, at A.M., New York time, on , or
at such other time not later than seven full business days thereafter as CSFB
and the Custodian determine, such time being herein referred to as the "FIRST
CLOSING DATE". The certificates for the Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFB requests and will be made
6
available for checking and packaging at the office of Cravath, Swaine & Moore
LLP at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFB given to the Company and the
Selling Shareholders from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per share to be paid for the Firm
Securities. The Selling Shareholders agree, severally and not jointly, to sell
to the Underwriters the respective numbers of Optional Securities obtained by
multiplying the number of Optional Securities specified in such notice by a
fraction the numerator of which is the number of shares set forth opposite the
names of such Selling Shareholders in Schedule A hereto under the caption
"Number of Optional Securities to be Sold" and the denominator of which is the
total number of Optional Securities (subject to adjustment by CSFB to eliminate
fractions). Such Optional Securities shall be purchased from each Selling
Shareholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFB to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFB to the Selling
Shareholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFB
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representative for the accounts of the several Underwriters, against payment of
the purchase price in Federal (same day) funds by official bank check or checks
or wire transfer to an account at a bank acceptable to CSFB drawn to the order
of , at the office of Cravath, Swaine & Moore LLP. The certificates for
the Optional Securities being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as CSFB
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the office of Cravath, Swaine &
Moore LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Shareholders. (a) The
Company agrees with the several Underwriters and the Selling Shareholders that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFB,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement.
The Company will advise CSFB promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred
as of such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective amendment
thereto with the Commission pursuant to and in accordance with Rule 462(b)
on or prior to 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFB.
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(ii) The Company will advise CSFB promptly of any proposal to amend
or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFB's consent; and the
Company will also advise CSFB promptly of the effectiveness of each
Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of
a Registration Statement and will use its reasonable best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(iii) 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 will promptly
notify CSFB 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 CSFB'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 6.
(iv) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(v) The Company will furnish to the Representative copies of each
Registration Statement two of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFB requests. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other such
documents shall be so furnished as soon as available. The Selling
Shareholders will pay the expenses of printing and distributing to the
Underwriters all such documents.
(vi) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFB
designates and will continue such qualifications in effect so long as
required for the distribution.
(vii) For a period of 180 days after the date of the initial public
offering of the Offered Securities, 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 Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFB, except grants of employee stock options or awards of restricted
stock units pursuant to the terms of a plan in effect on the date hereof,
issuances of Securities pursuant to the exercise of such options or the
exercise of any other employee
8
stock options outstanding on the date hereof or issuances of Securities
pursuant to the award of restricted stock units.
(b) The Company and the Selling Shareholders (represented by PNC Bank,
National Association, as trustee) entered into a Reimbursement Agreement on June
11, 2004. The Reimbursement Agreement provides, among other things and subject
to certain exceptions, for the payment of Registration Expenses (as defined in
the Reimbursement Agreement) by the Selling Shareholders. Consistent with the
terms of the Reimbursement Agreement, the Selling Shareholders agree with the
several Underwriters and the Company that the Selling Shareholders will pay all
Registration Expenses together with any transfer taxes on the sale of the
Offered Securities to the Underwriters. In accordance with the terms of the
Reimbursement Agreement, the Selling Shareholders also agree to pay one-half of
the expenses incident to any travel expenses (including, without limitation, the
cost of chartering a plane) 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 the Offered Securities (the Company agrees to pay
the other half of such expenses).
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Shareholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Shareholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representative shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Deloitte & Touche LLP
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 schedules
examined by them and included in the Registration Statements 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. 100, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(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:
(A) the unaudited financial statements included in the
Registration Statements 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 for them to be in conformity with
generally accepted accounting principles;
9
(B) the unaudited consolidated revenues, net sales,
operating income, net income and net income per share amounts
for the three and six-month periods ended June 30, 2004
included in the Prospectus do not agree with the amounts set
forth in the unaudited consolidated financial statements for
those same periods 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 such
letter, 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
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 in consolidated net
sales or net operating income in the total or per share
amounts of consolidated income before extraordinary items or
net income;
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 Registration Statements (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.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be
filed or as proposed to be amended by the post-effective amendment to be
filed shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall
mean the prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is
not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have been consented to
by CSFB. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than
10
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
CSFB. If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of any Selling Shareholder, the
Company or the Representative, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
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 the Representative, 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 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 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 change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters including the Representative, be
likely to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or
in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on
the New York Stock Exchange, or any setting of minimum prices for trading
on such exchange; (v) any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (vi) any
banking moratorium declared by U.S. Federal or New York authorities; (vii)
any major disruption of settlements of securities or clearance services in
the United States or (viii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Underwriters including the Representative, the effect of any such attack,
outbreak, escalation, act, 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) The Representative shall have received an opinion, dated such
Closing Date, of Ballard Spahr Andrews & Ingersoll, LLP, counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is validly
subsisting as a corporation under the laws of the Commonwealth of
Pennsylvania, with corporate power and authority 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 North Carolina, New Jersey and
Wisconsin;
(ii) Each domestic subsidiary of the Company has been duly
incorporated or formed and is an existing corporation or other
entity in good standing under the laws of the jurisdiction of its
incorporation, with corporate or limited liability company power and
authority to own its properties and conduct its business as
described in the Prospectus; and each domestic subsidiary of the
Company is duly qualified to do business as a foreign corporation or
other entity in good standing in the jurisdictions set forth on
Schedule H; all of the issued and outstanding capital stock or other
equity interest of each domestic subsidiary of the Company has been
duly authorized and validly issued and is fully paid and
nonassessable; the capital stock or other equity interest of each
subsidiary owned by the Company, directly or through subsidiaries,
is owned free of any perfected security
11
interest created under Article 9 of the Uniform Commercial Code,
and, to our knowledge, is owned free from any other liens,
encumbrances and defects;
(iii) The Offered Securities delivered on such Closing Date
and all other outstanding shares of the Common Stock of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof incorporated by
reference in the Prospectus; and the shareholders of the Company
have no preemptive rights under the Company's Articles of
Incorporation and By-laws with respect to the Securities;
(iv) There are no contracts, agreements or understandings
known to such counsel 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;
(v) The Company is not an "investment company" as defined in
the Investment Company Act of 1940, as amended.
(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by the Company for the consummation
of the transactions contemplated by this Agreement in connection
with the sale of the Offered Securities, except such as have been
obtained and made under the Act and such as may be required under
state securities laws;
(vii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated 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 known to such counsel, of any
governmental agency or body or any court having jurisdiction over
the Company or any domestic subsidiary of the Company or any of
their properties, or any agreement or instrument filed as an exhibit
to the Company's Annual Report on Form 10-K for the year ended
December 31, 2003 or its Quarterly Report on Form 10-Q, for the
quarter ended June 30, 2004 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;
(viii) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed
and became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or
was included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a 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 each Registration
Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the Act
and the Rules and Regulations; such counsel have no reason to
believe that any part of a Registration Statement or any amendment
thereto, as of its effective 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 or any amendment or supplement
thereto, as of its issue date or as of such Closing Date, contained
any untrue statement of a
12
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; the
descriptions in the Registration Statements and Prospectus of
statutes, legal and governmental proceedings and contracts and other
documents, in so far as such descriptions purport to constitute a
summary of such statutes, legal or governmental proceedings,
contracts or other documents, are accurate in all material respects
and fairly summarize the information required to be shown; and such
counsel do not know of any legal or governmental proceedings
required to be described in a Registration Statement or the
Prospectus which are not described as required or of any contracts
or documents of a character required to be described in a
Registration Statement or the Prospectus or to be filed as exhibits
to a Registration Statement which are not described or filed as
required; it being understood that such counsel need express no
opinion as to the financial statements, other financial data or the
sections titled "Critical Accounting Policies" and "Recent
Accounting Pronouncements" contained in the Registration Statements
or the Prospectus; and
(ix) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Representative shall have received an opinion, dated such
Closing Date, of Obermayer Rebmann Maxwell & Hippel, LLP ("Obermayer"),
counsel for PNC Bank, National Association, a trustee or co-trustee of
trusts that are Selling Shareholders, in a form satisfactory to the
Representative and Obermayer.
13
(f) The Representative shall have received from Cravath, Swaine &
Moore LLP, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representative may require, and the Selling Shareholders and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, Cravath, Swaine & Moore LLP may rely as to the
incorporation of the Company and all other matters governed by
Pennsylvania law upon the opinion of Ballard Spahr Andrews & Ingersoll,
LLP referred to above.
(g) The Representative shall have received a certificate, dated such
Closing Date, of the Chief Executive Officer or any Vice President and a
principal financial or accounting officer of the Company in which such
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; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission; the Additional Registration Statement (if
any) satisfying the requirements of subparagraphs (1) and (3) or Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any
underwriter; and, subsequent to the dates 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 the Prospectus or as described in such certificate.
(h) The Representative shall have received a letter, dated such
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to such
Closing Date for the purposes of this subsection.
(i) The Custodian will deliver to CSFB a letter stating that it
will deliver to each Selling Shareholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof) on or
before January 31 of the year following the date of this Agreement.
(j) The Representative shall have received an opinion dated such
Closing Date, of Harkins Cunningham LLP, counsel for the co-trustees set
forth on Schedule C, in the form set forth on Schedule D.
(k) The Representative shall have received an opinion dated such
Closing Date, of Thompson & Knight LLP, counsel for the Probasco Family
Living Trust, a Selling Shareholder, in the form set forth on Schedule E.
(l) The Representative shall have received an opinion dated such
Closing Date, of Freshfields Bruckhaus Deringer, counsel for the Company,
in the form set forth on Schedule G.
The Selling Shareholders and the Company will furnish the Representative with
such conformed copies of such opinions, certificates, letters and documents as
the Representative reasonably requests. CSFB may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
14
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, members, directors and officers
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, and each Selling Shareholder, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or Selling
Shareholders 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 any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 or Selling
Shareholder for any legal or other expenses reasonably incurred by such
Underwriter or Selling Shareholder 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 (i) any Underwriter through the
Representative 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 subsection (c) below or (ii) any Selling
Shareholder specifically for use therein, it being understood and agreed that
the only such information furnished by any Selling Shareholder consists of the
information described as such in subsection (b) below; provided further,
however, that with respect to any untrue statement or omission of material fact
made in any preliminary prospectus, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Underwriter from whom a
person has purchased Offered Securities and such person is asserting a loss,
claim, damage or liability against such Underwriter and such loss, claim, damage
or liability has been incurred by such person under circumstances where it shall
have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (i) the Company had previously furnished the
requisite quantities of copies of the Prospectus on a timely basis to the
Underwriters, (ii) the untrue statement or omission of a material fact contained
in the preliminary prospectus was corrected in the Prospectus and (iii) such
Underwriters shall have failed to use reasonable efforts to send to such person,
at or prior to the written confirmation of the sale of such Offered Securities
to such person, a copy of the Prospectus.
(b) The Selling Shareholders, severally, will indemnify and hold harmless
each Underwriter, its partners, members, directors and officers and each person,
if any, who controls such Underwriter within the meaning of Section 15 of the
Act, and the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, 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 any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, 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 Selling Shareholders
shall only 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 a Selling Shareholder specifically for use therein, it being
understood and agreed that the only such information furnished by any Selling
Shareholder consists of the information in the Prospectus set forth on Schedule
F.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and the
Selling Shareholders against any losses, claims, damages or liabilities to which
the Company or any Selling Shareholder 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 any Registration Statement,
the Prospectus, or any
15
amendment or supplement thereto, or any related preliminary prospectus, 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 Representative
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Shareholder 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 following
information in the Prospectus furnished on behalf of each Underwriter: the
information appearing in the first, fourth, ninth and eleventh paragraphs under
the caption "Underwriting".
(d) 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 an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an 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 (evidence of such satisfaction to be provided in writing by
the indemnified 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 could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are 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 an indemnified party.
If, pursuant to this subsection (d), the indemnifying party has assumed the
defense of a proceeding against an indemnified party, the indemnifying party
shall not be liable for any settlement of such proceeding effected by any
indemnified party without its written consent.
(e) If the indemnification provided for in this Section is unavailable or
insufficient, although applicable in accordance with its terms, to hold harmless
an indemnified party under subsection (a), (b) or (c) 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), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other from the
offering of the 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 and the Selling Shareholders 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 and the Selling Shareholders 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 Selling
Shareholders 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, the Selling Shareholders 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 (e) shall
16
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 (e), subject to the limitations
set forth in subsection (d), above. Notwithstanding the provisions of this
subsection (e), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of 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 (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under this
Section shall be in addition to any liability which the Company and the Selling
Shareholders 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 a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFB may
make arrangements satisfactory to the Selling Shareholders for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFB and the Selling Shareholders for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Shareholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). 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.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Shareholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to 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, any Selling
Shareholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Selling Shareholders shall remain
responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Shareholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
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 this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Selling
Shareholders will severally, reimburse the Underwriters for all out-of-pocket
expenses (including fees and
17
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Representative at Eleven Madison Avenue, New York, NY 10010-3629, Attention:
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or faxed and confirmed to it at 96 South George Street, Suite 400,
York, Pennsylvania 17401, Attention: General Counsel, or, if sent to the Selling
Shareholders or any of them, will be mailed, delivered or faxed and confirmed to
at ; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to CSFB at the
address set forth herein, or to Merrill Lynch, Pierce, Fenner & Smith
Incorporated at 4 World Financial Center, New York, NY 10080, Attention: Global
Origination Counsel Group.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
12. Representation. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters. John C. van Roden, Jr. will act for the Selling
Shareholders in connection with such transactions, and any action under or in
respect of this Agreement taken by John C. van Roden, Jr. will be binding upon
all the Selling Shareholders.
13. Counterparts. This 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.
14. APPLICABLE LAW. THIS 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 this Agreement or the
transactions contemplated hereby.
18
If the foregoing is in accordance with the Representative's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Shareholders, the Company and the several Underwriters in accordance with its
terms.
Very truly yours,
EACH SELLING SHAREHOLDER SET
FORTH ON SCHEDULE A
By _____________________
John C. van Roden, Jr
Attorney-in-Fact
P.H. GLATFELTER COMPANY
By _____________________
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
By _______________________
Acting on behalf of itself and as the
Representative of the several Under-
writers.
19
SCHEDULE A
[Enlarge/Download Table]
NUMBER OF
NUMBER OF OPTIONAL
FIRM SECURITIES SECURITIES
SELLING SHAREHOLDER TO BE SOLD TO BE SOLD
------------------- --------------- ------------
1. GLT Family Scholarship Foundation 1,082 162
2. Janet V. Eyster 8,802 1,320
3. Karen E. Glatfelter Revocable Trust under Deed dated 2/4/04 3,956 593
4. L. Romaine Glatfelter Trust No. 12 99,493 14,924
5. L. Romaine Glatfelter Trust No. 13 99,493 14,924
6. L. Romaine Glatfelter Trust No. 14 99,493 14,924
7. L. Romaine Glatfelter Trust No. 24 175,537 26,331
8. L. Romaine Glatfelter Trust No. 25 175,537 26,331
9. L. Romaine Glatfelter Trust No. 26 175,537 26,331
10. L. Romaine Glatfelter 2/Charitable Trust 8,837 1,326
11. Mellie I. Glatfelter 2/Charitable Trust 8,837 1,326
12. Probasco Family Living Trust 128,005 19,201
13. T/D Mellie I. Glatfelter Trust No. 21 124,579 18,687
14. T/D Mellie I. Glatfelter Trust No. 22 124,579 18,687
15. T/D Mellie I. Glatfelter Trust No. 23 124,579 18,687
16. Trust under Deed of Anne M. Glatfelter dated 7/21/48, as amended, I 15,616 2,342
17. Trust under Deed of Anne M. Glatfelter dated 7/21/48, as amended, II 17,435 2,615
18. Trust under Deed of Cassandra E. Savitz dated 12/18/87 614,026 92,104
19. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, Amended, as
apptd by PHG III, I 19,160 2,874
20. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, apptd by PHG III, II 19,160 2,874
21. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, as amended, I 17,061 2,559
22. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, as amended, II 11,381 1,707
23. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, as amended, III 13,622 2,043
24. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, as amended, IV 12,582 1,887
25. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, as amended, V 13,622 2,043
26. Trust under Deed of Cassandra McC. Glatfelter dated 8/10/45, as apptd by TMcCG 40,865 6,130
27. Trust under Deed of Elizabeth G. Kegler dated 10/27/74, as amended 455,883 68,382
[Enlarge/Download Table]
28. Trust under Deed of Elizabeth G. Rosenmiller dated 7/7/87 I 3,379 507
29. Trust under Deed of Elizabeth G. Rosenmiller dated 7/7/87 II 5,984 898
30. Trust under Deed of Elizabeth G. Rosenmiller dated 7/7/87 III 6,200 930
31. Trust under Deed of Elizabeth G. Rosenmiller dated 7/7/87 IV 8,422 1,263
32. Trust under Deed of Elizabeth G. Rosenmiller dated 7/22/87 I 520 78
33. Trust under Deed of Elizabeth G. Rosenmiller dated 7/22/87 II 520 78
34. Trust under Deed of Elizabeth G. Rosenmiller dated 11/5/92 I 12,154 1,823
35. Trust under Deed of Elizabeth G. Rosenmiller dated 11/5/92 II 8,107 1,216
36. Trust under Deed of George H. Glatfelter dated 1/12/51, as amended 260,451 39,068
37. Trust under Deed of George H. Glatfelter dated 10/19/76 208,349 31,252
38. Trust under Deed of George H. Glatfelter dated 12/12/89 I 1,405 211
39. Trust under Deed of George H. Glatfelter dated 12/12/89 II 2,954 443
40. Trust under Deed of George H. Glatfelter dated 12/12/89 III 2,954 443
41. Trust under Deed of Irene G. Fegley dated 7/16/79 I 3,158 474
42. Trust under Deed of Irene G. Fegley dated 7/16/79 II 2,299 345
43. Trust under Deed of Julius Berkowitz dated 3/6/89 3,045 457
44. Trust under Deed of Katherine G. Costello dated 1/2/69, as amended 347,458 52,119
45. Trust under Deed of Katherine G. Costello dated 12/3/87 I 1,016 152
46. Trust under Deed of Katherine G. Costello dated 12/3/87 II 1,016 152
47. Trust under Deed of Katherine G. Costello dated 12/3/87 III 1,016 152
48. Trust under Deed of Katherine G. Costello dated 9/12/95/GST exempt 17,820 2,673
49. Trust under Deed of Katherine H. Glatfelter dated 1/14/28, as amended 16,350 2,452
50. Trust under Deed of L Romaine Glatfelter dated 9/24/29 140,430 21,064
51. Trust under Deed of L Romaine Glatfelter dated 9/27/29 as apptd by
William L. Glatfelter 126,744 19,012
52. Trust under Deed of Mellie I. Glatfelter dated 9/27/29, as apptd by
William L. Glatfelter 99,658 14,949
53. Trust under Deed of Patricia G. Foulkrod dated 12/28/65, as amended 466,140 69,921
54. Trust under Deed of Paul J. Costello dated 12/3/87 I 868 130
55. Trust under Deed of Paul J.Costello dated 12/3/87 II 1,519 228
56. Trust under Deed of Paul J. Costello dated 12/3/87 III 1,953 293
57. Trust under Deed of Paul J. Costello dated 12/3/87 IV 1,953 293
58. Trust under Deed of Philip H. Glatfelter 9/19/39, apptd by C McC. Glatfelter I 2,105 316
59. Trust under Deed of Philip H. Glatfelter 9/19/39, apptd by C McC. Glatfelter II 1,404 211
60. Trust under Deed of Philip H. Glatfelter dated 12/8/55 228,398 34,260
61. Trust under Deed of Philip H. Glatfelter dated 12/8/55 as supplemented by LRG & 114,174 17,126
2
[Enlarge/Download Table]
apptd by PHG I, I
62. Trust under Deed of Philip H. Glatfelter dated 12/8/55 supplemented by LRG & apptd by
PHG I, II 114,174 17,126
63. Trust under Deed of Philip H. Glatfelter dated 4/23/54, as amended, I 39,107 5,866
64. Trust under Deed of Philip H. Glatfelter dated 4/23/54, as amended, II 26,087 3,913
65. Trust under Deed of Philip H. Glatfelter dated 12/8/55, as appt by Theodore McC.
Glatfelter 228,348 34,252
66. Trust under Deed of Philip H. Glatfelter dated 9/19/39, apptd by CMcCG & PHG III, I 2,203 330
67. Trust under Deed of Philip H. Glatfelter dated 9/19/39, apptd by CMcCG & PHG III, II 2,203 330
68. Trust under Deed of Philip H. Glatfelter dated 9/19/39, as apptd by Cassandra McC.
Glatfelter 5,044 757
69. Trust under Deed of Philip H. Glatfelter dtd 9/19/39 as apptd by CMcCG & TMcCG 5,042 756
70. Trust under Deed of Philip H. Glatfelter, III dated 11/14/89 I 4,922 738
71. Trust under Deed of Philip H. Glatfelter, III dated 11/14/89 II 4,922 738
72. Trust under Deed of Philip H. Glatfelter, III dated 11/14/89 III 4,922 738
73. Trust under Deed of Philip H. Glatfelter, III dated 12/21/76 12,476 1,871
74. Trust under Deed of Philip H. Glatfelter IV dated 7/24/79 312 47
75. Trust under Deed of Sherry M. Glatfelter dated 2/1/88 3,874 581
76. Trust under Deed of Theodore McC. Glatfelter dated 4/7/41, as amended (marital) 251,232 37,685
77. Trust under Deed of Theodore McC. Glatfelter dated 4/7/41, as amended (GST) 25,045 3,757
78. Trust under Deed of Theodore McC. Glatfelter dated 12/17/76 31,079 4,662
79. Trust under Deed of Theodore McC. Glatfelter dated 4/7/41, as amended 5/6/87 72,091 10,814
80. Trust under Deed of William L. Glatfelter dated 9/27/29 508,322 76,248
81. Trust under Deed of William L. Glatfelter III dated 2/1/88 912 137
82. Trust under Deed of William M. Eyster II 406,430 60,965
83. WLG Charitable Foundation 42,571 6,386
--------- -------
6,500,000 975,000
========= =======
3
SCHEDULE B
[Enlarge/Download Table]
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC...............................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.....................................................
---------
=========
Total.............................................
SCHEDULE C
Katherine G. Costello
William M. Eyster
Elizabeth Glatfelter
George H. Glatfelter
Patricia G. Foulkrod
Cassandra E. Savitz
Katherine K. Glatfelter
2
SCHEDULE D
(i) The execution, delivery and performance of the Custody Agreement and
this Agreement and the consummation of the transactions therein and herein
contemplated 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 having jurisdiction
over any Selling Shareholder or any agreement or instrument to which any Selling
Shareholder is a party or by which any Selling Shareholder is bound or to which
any of the properties of any Selling Shareholder is subject; and
(ii) This Agreement has been duly authorized, executed and delivered by
each Selling Shareholder.
3
SCHEDULE E
(i) The Probasco Family Living Trust (a "Selling Shareholder") has valid
and unencumbered title to the Offered Securities delivered by such Selling
Shareholder on such Closing Date and has full right, power and authority to
sell, assign, transfer and deliver the Offered Securities delivered by such
Selling Shareholder on such Closing Date hereunder; and the several Underwriters
have acquired valid and unencumbered title to the Offered Securities purchased
by them on such Closing Date hereunder;
(ii) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court is required to be obtained or made by
the Selling Shareholder for the consummation of the transactions contemplated by
the Custody Agreement and or this Agreement in connection with the sale of the
Offered Securities, except such as have been obtained and made under the Act and
such as may be required under state securities laws;
(iii) The execution, delivery and performance of the Custody Agreement and
this Agreement and the consummation of the transactions therein and herein
contemplated 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 having jurisdiction
over the Selling Shareholder or any of its properties or any agreement or
instrument to which the Selling Shareholder is a party or by which the Selling
Shareholder is bound or to which any of the properties of the Selling
Shareholder is subject, or the constituent trust documents of the Selling
Shareholder whose Offered Securities are held in trust; and
(iv) The Power of Attorney and related Custody Agreement with respect to
the Selling Shareholder has been duly authorized, executed and delivered by the
Selling Shareholder and constitute valid and legally binding obligations of the
Selling Shareholder 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; and
(v) This Agreement has been duly authorized, executed and delivered by the
Selling Shareholder.
4
SCHEDULE F
The following information is included pursuant to Section 7(b). The information
appearing in:
(i) the fourth sentence in the first paragraph and the second
sentence in the second paragraph under the heading "Background to
the Offering" in the "Prospectus Summary" section of the
Prospectus;
(ii) the third paragraph under the heading "Background to the
Offering" in the "Prospectus Summary" section of the Prospectus;
(iii) the third sentence in the fourth paragraph under the heading
"Background to the Offering" in the "Prospectus Summary" section
of the Prospectus;
(iv) the first and fourth sentences in the second paragraph under the
heading "The sale of our shares in this offering or future sales
of our shares could depress the market price of our common stock"
in the "Risk Factors" section of the Prospectus;
(v) the first paragraph of the "Certain Relationships and Related
Transactions" section of the Prospectus, except for the last
sentence in that paragraph;
(vi) the first sentence in the second paragraph of the "Certain
Relationships and Related Transactions" section of the
Prospectus;
(vii) the first sentence (exclusive of the reference to service on the
Board) and the second sentence in the third paragraph of the
"Certain Relationships and Related Transactions" section of the
Prospectus;
(viii) the first sentence in the fourth paragraph of the "Certain
Relationships and Related Transactions" section of the
Prospectus;
(ix) the table in the "Principal and Selling Shareholders" section of
the Prospectus (the "Table") with respect to The PNC Financial
Services Group, Inc., P.H. Glatfelter Family Shareholders' Voting
Trust and G.H. Glatfelter;
(x) the Table below the heading "Selling Shareholders" and above the
heading "Directors and Executive Officers";
(xi) footnotes 3 and 4 to the Table;
(xii) footnote 4 to the Table except for the phrase "6,000 shares
issuable upon the exercise of options";
(xiii) footnotes 8 and 9 to the Table;
(xiv) footnote 12 to the Table except for the information appearing
under (i) and (ii) of that footnote;
5
(xvi) the third paragraph of the "Underwriting" section of the
Prospectus;
(xvii) the underwriting discounts and commissions paid by the Selling
Shareholders and the expenses payable by the Selling Shareholders
in the fifth paragraph of the "Underwriting" section of the
Prospectus;
(xviii) the seventh paragraph of the "Underwriting" section of the
Prospectus insofar as it relates to the Selling Shareholders; and
(xix) the third through sixth sentences in the last paragraph of the
"Underwriting" section of the Prospectus.
6
SCHEDULE G
[Freshfields opinion]
7
SCHEDULE H
[Foreign qualification]
8
Dates Referenced Herein and Documents Incorporated by Reference
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