EXHIBIT 1.1
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▇▇▇▇▇▇ RUBBERMAID INC.
$250,000,000 4.00% Notes Due 2010
UNDERWRITING AGREEMENT
May 1, 2003
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
▇▇▇▇▇▇ Rubbermaid Inc., a Delaware corporation (the
"Company"), proposes to sell, severally and not jointly, to the
underwriters named in Schedule II hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, the
principal amount of its 4.00% Notes Due 2010 identified in Schedule I
hereto (the "Securities"), to be issued under the senior indenture
(the "Indenture") dated as of November 1, 1995, between ▇▇▇▇▇▇
Rubbermaid Inc. (formerly ▇▇▇▇▇▇ Co.) and JPMorgan Chase Bank
(formerly The Chase Manhattan Bank (National Association)), as trustee
(the "Trustee"), relating to senior debt securities. If the firm or
firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to
such firm or firms.
The Company has filed with the Securities and Exchange
Commission (the "SEC") registration statements on Form S-3 (Nos. 333-
88050 and 333-103773) for the registration of securities, including
the Securities, under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering of such Securities from time to time in
accordance with Rule 415 of the 1933 Act Regulations. Such
registration statements, as amended, have each been declared effective
by the SEC and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statements and the prospectuses constituting a part thereof, and the
prospectus supplements relating to the offering of the Securities,
including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents
pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except
that if any revised prospectus shall be provided to the Underwriters
by the Company for use in connection with the offering of the
Securities which is not required to be filed by the Company pursuant
to Rule 424(b) of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"), the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first provided
to the Underwriters for such use.
1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to the Underwriters as of the date hereof and as of the
Closing Date (as defined below) (each of the Closing Date and the date
hereof being referred to as a "Representation Date"), as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware with corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement, the Indenture and
the Securities; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise (a "Material Adverse Effect").
(ii) SUBSIDIARIES. Each subsidiary of the Company
which is a significant subsidiary as defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act (each a "Significant
Subsidiary") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not have a Material
Adverse Effect; and all of the issued and outstanding capital stock,
owned directly or indirectly by the Company, of each Significant
Subsidiary has been duly authorized and validly issued is fully paid
and non-assessable and is so owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At the
time the Registration Statement became effective, the Registration
Statement and the Indenture complied, and as of each Representation
Date will comply, in all material respects with the requirements of
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the 1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the SEC under the 1939 Act (the "1939 Act
Regulations"). The Registration Statement at the time it became
effective, did not, and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as of the date
hereof, does not, and as of the Closing Date will not, include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply, with respect to any Underwriter, to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by such Underwriter with respect to itself
expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which constitutes the
Trustee's Statement of Eligibility under the 1939 Act (Form T-1).
(iv) INCORPORATED DOCUMENTS. The documents
incorporated or deemed to be incorporated by reference in the
Prospectus, at the time they were filed or amended or hereafter are
filed with the SEC, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations") and, when read together and with the other information
in the Prospectus, at the date hereof, at the date of the Prospectus
and as of the Closing Date did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were or
are made, not misleading.
(v) ACCOUNTANTS. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who certified
certain financial statements of the Company and its consolidated
subsidiaries, were, at the time of such certification, independent
public accountants with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Regulations. Ernst & Young LLP, who
have certified certain financial statements of the Company and its
consolidated subsidiaries for the fiscal year 2002, are independent
public accountants with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Regulations.
(vi) FINANCIAL STATEMENTS. The financial statements
included or incorporated by reference in the Registration Statement
and the Prospectus present fairly the consolidated financial position
of the Company and its consolidated subsidiaries as at the dates
indicated and the consolidated results of their operations for the
periods specified; except as otherwise stated in the Registration
Statement, said financial statements have been prepared in conformity
with generally accepted accounting principles in the United States
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applied on a consistent basis; and the supporting schedules included
or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURE AND THE SECURITIES. This Agreement has been duly and
validly authorized, executed and delivered by the Company; the
Indenture has been duly and validly authorized, executed and delivered
by the Company and is a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting enforcement
of creditors' rights generally or by general equity principles; the
Securities have been duly and validly authorized for issuance, offer
and sale pursuant to this Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement, the
Indenture and the Officers' Certificate with respect to the Securities
heretofore delivered by the Company to the Trustee (the "Officers'
Certificate") against payment of the consideration therefor specified
in the Prospectus, the Securities will constitute valid and legally
binding obligations of the Company enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles; the Securities and the
Indenture will be substantially in the form heretofore delivered to
the Underwriters, and each holder of the Securities will be entitled
to the benefits provided by the Indenture.
(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated therein or contemplated thereby, (a) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, (b) there have been no
transactions entered into by the Company or any of its subsidiaries
that are material to the Company and its subsidiaries considered as
one enterprise, other than those in the ordinary course of business,
and (c) except for regular dividends on the Company's common stock or
preferred stock in amounts per share that are consistent with past
practices or the applicable charter document or supplement thereto,
respectively, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(ix) DESCRIPTION OF THE SECURITIES AND THE INDENTURE.
The Securities and the Indenture will conform in all material respects
to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective forms filed or
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incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(x) NO DEFAULTS. Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter or in default
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any of its Significant
Subsidiaries is subject, except when such default would not have a
Material Adverse Effect; and the execution, delivery and performance
of this Agreement, the Indenture and the Securities, the compliance by
the Company with its obligations hereunder and thereunder and the
consummation of the transactions contemplated herein, therein and in
the Registration Statement (including the issuance and sale of the
Securities and the use of proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds"), will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any such subsidiary is subject, nor will such action result
in any violation of the provisions of the charter or by-laws of the
Company or any law, administrative regulation or administrative or
court order or decree of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the Company.
(xi) CATASTROPHIC EVENTS. The Company has not
sustained a loss on account of fire, flood, accident, terrorism or
other calamity which materially and adversely affects the business of
the Company and its subsidiaries taken as a whole as disclosed in the
Registration Statement and the Prospectus, regardless of whether or
not such loss shall have been insured.
(xii) LEGAL PROCEEDINGS; CONTRACTS. Except as set forth
in the Registration Statement and the Prospectus, there is no action,
suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, which will, in the opinion of the Company, result in any
Material Adverse Effect or will materially and adversely affect the
performance by the Company of its obligations under this Agreement;
and there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed or incorporated by
reference as exhibits to the Registration Statement by the 1933 Act or
by the 1933 Act Regulations which have not been so filed or
incorporated by reference.
(xiii) ENVIRONMENTAL LAWS. Except as would not, singly
or in the aggregate, result in a Material Adverse Effect, and other
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than as described or incorporated by reference in the Prospectus, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's or any of its
subsidiaries' knowledge, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or Environmental
Laws.
(xiv) NO AUTHORIZATION, APPROVAL OR CONSENT REQUIRED.
No authorization, approval, consent, order or decree of any court or
governmental agency or body including the SEC is required for the
consummation by the Company of the transactions contemplated by this
Agreement or in connection with the sale of the Securities hereunder,
except such as have been obtained or rendered, as the case may be, or
as may be required under state securities ("Blue Sky") laws.
(xv) INAPPLICABILITY OF INVESTMENT COMPANY ACT OF 1940.
The Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xvi) COMMODITY EXCHANGE ACT. The Securities, when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or exempted under the
provisions of the Commodity Exchange Act.
(xvii) RATINGS. As of the date hereof, the senior
unsecured long term debt of the Company is rated Baa1 by ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's"), BBB+ by Fitch Ratings, Ltd.
("Fitch") and BBB+ by Standard & Poor's Ratings Group ("S&P").
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(xviii) INTERNAL CONTROLS. The Company and each of its
Significant 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; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by
any director or officer of the Company and delivered to an Underwriter
or to counsel for the Underwriters in connection with the offering or
sale of the Securities shall be deemed a representation and warranty
by the Company to the Underwriters as to the matters covered thereby
on the date of such certificate and at each Representation Date
subsequent thereto.
2. PURCHASE AND SALE.
Subject to the terms and conditions and in reliance upon
the representations and warranties set forth herein, the Company
agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of
the Securities set forth opposite such Underwriter's name in Schedule
II hereto. The Underwriters may engage the services of any other
broker or dealer in connection with the resale of any of the
Securities purchased by them and may allow all or any portion of the
discount received in connection with such purchases from the Company
to such brokers and dealers.
3. DELIVERY AND PAYMENT.
Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto (or such later
date not later than five business days after such specified date as
the Representatives shall designate), which date and time may be
postponed by agreement between the Representatives and the Company or
as provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representatives for
the respective accounts of the several Underwriters against payment by
the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer in
Federal (same day) funds. Delivery of the Securities shall be made at
such location as the Representatives shall reasonably designate at
least one business day in advance of the Closing Date and payment for
the Securities shall be made at the office specified in Schedule I
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hereto. Certificates for the Securities shall be registered in such
names and in such denominations as the Representatives may request not
less than two full business days in advance of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging by the Representatives in New York,
New York, not later than 1:00 PM on the business day prior to the
Closing Date.
4. COVENANTS OF THE COMPANY.
The Company covenants with each Underwriter as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the
Underwriters immediately of (i) the effectiveness of any amendment to
the Registration Statement, (ii) the transmittal to the SEC for filing
of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act which will be incorporated by reference in
the Prospectus, (iii) the receipt of any comments from the SEC with
respect to the Registration Statement or the Prospectus, including any
document incorporated by reference therein, (iv) any request by the
SEC for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, and (v)
the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for
that purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
In addition, after learning of either such event, the Company will
forthwith notify the Underwriters if the rating assigned to any debt
securities of the Company by any nationally recognized securities
rating agency shall have been lowered, or if any such rating agency
shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any debt
securities of the Company.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will
give the Underwriters notice of its intention to file or prepare any
additional registration statement with respect to the registration of
additional Securities, any amendment to the Registration Statement
(including any filing under Rule 462(b)) or any amendment or
supplement to the Prospectus (other than a supplement providing solely
for the specification of the interest rates or formulas and issuance
prices of the Securities sold pursuant hereto), whether by the filing
of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish the Underwriters with copies of any such amendment or
supplement or other documents proposed to be filed or used a
reasonable time in advance of such proposed filing or use, as the case
may be.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE
PROSPECTUS. The Company will deliver to each Underwriter as many
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signed and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as each Underwriter may
reasonably request. The Company will furnish to each Underwriter as
many copies of the Prospectus (as amended or supplemented) as each
Underwriter shall reasonably request so long as the requesting
Underwriter is required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase Securities. The
Registration Statement and the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to
any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) PREPARATION OF PROSPECTUS SUPPLEMENTS. The Company
will prepare, with respect to the Securities to be sold to the
Underwriters pursuant to this Agreement, a Prospectus Supplement with
respect to such Securities and will file such Prospectus Supplement
pursuant to Rule 424(b) under the 1933 Act within the time period
prescribed therefor under Rule 424(b).
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company
will comply with the 1933 Act and the 1933 Act Regulations, the 1934
Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act
Regulations so as to permit the completion of the distribution of the
Securities as contemplated by this Agreement and the Prospectus. If
at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission
or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) EARNINGS STATEMENTS. The Company will timely file such
reports pursuant to the 1934 Act as are necessary in order to make
generally available to its security holders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11 (a) of the 1933 Act.
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(g) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Underwriters may
designate, and will maintain such qualifications in effect for as long
as may be required for the distribution of the Securities; provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation
in any jurisdiction in which it is not so qualified. The Company will
file such statements and reports as may be required by the laws of
each jurisdiction in which the Securities have been qualified as above
provided. The Company will promptly advise the Underwriters of the
receipt by the Company of any notification with respect to the
suspension of the qualification of any of the Securities for sale in
any such state or jurisdiction or the initiating or threatening of any
proceeding for such purpose.
(h) 1934 ACT FILINGS. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the SEC
pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
(i) USE OF PROCEEDS. The Company will use the net proceeds
received by it from the issuance and sale of the Securities in the
manner specified in the Prospectus.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the
Securities from the Company shall be subject to the accuracy of the
representations and warranties on the part of the Company herein
contained as of the date hereof and the Closing Date, and to the
accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof relating to
such Securities, to the performance and observance by the Company of
all its covenants and agreements herein contained and to the following
additional conditions precedent:
(a) LEGAL OPINIONS. The Underwriters shall have received
the following legal opinions, dated as of the Closing Date, and
otherwise in form and substance satisfactory to the Underwriters:
(1) OPINION OF GENERAL COUNSEL OF COMPANY. The
opinion of the General Counsel of the Company to the effect that:
(i) Each Significant Subsidiary is validly
existing in good standing under the laws of the jurisdiction of its
organization and, to the best of such counsel's knowledge, each of the
Company and each Significant Subsidiary is duly qualified to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
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leasing of property or the conduct of business, except where the
failure to so qualify or be in good standing would not have a Material
Adverse Effect.
(ii) Each Significant Subsidiary has the power and
authority to own, lease and operate its properties and to conduct its
business as currently conducted and as described in the Prospectus.
(iii) All of the issued and outstanding capital
stock of each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, except for
directors' qualifying shares, if any, is owned directly or indirectly
by the Company, free and clear of any recorded security interest,
lien, encumbrance or claim.
(iv) To the best of such counsel's knowledge,
there are no legal or governmental proceedings before any court or
governmental agency, authority or body or any arbitrator pending or
threatened which are required to be disclosed in the Prospectus, other
than those disclosed therein.
(v) The execution and delivery by the Company of
this Agreement, the Indenture and the Securities, the performance by
the Company of its agreements herein and therein and the incurrence by
the Company of the indebtedness to be evidenced by the Securities will
not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Significant Subsidiary under any contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel and
to which the Company or any Significant Subsidiary is a party or by
which any of them are bound or to which any property or assets of the
Company or any such Significant Subsidiary is subject.
(vi) the Company's authorized and outstanding
equity capitalization is as set forth in the Prospectus as of the date
or dates indicated herein; and the Securities conform in all material
respects to the description thereof contained in the Prospectus.
(vii) no holders of securities of the Company have
rights to the registration of such securities under the Registration
Statement.
(2) OPINION OF COMPANY COUNSEL. The opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, to the effect that:
(i) The Company and each Significant Subsidiary
has been duly incorporated (or, in the case of a Significant
Subsidiary that is not a corporation, duly formed or organized, as the
case may be) and is validly existing in good standing under the laws
of the jurisdiction of its incorporation (or, if applicable, formation
or organization).
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(ii) The Company has corporate power and authority
to own, lease and operate its properties and to conduct its business
as described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Indenture and the Securities.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing under the
laws of the State of Illinois.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(v) The Indenture has been duly and validly
authorized, executed and delivered by the Company and (assuming the
Indenture has been duly authorized, executed and delivered by the
Trustee) constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws relating to or affecting enforcement of creditors' rights
generally, or by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(vi) The forms of the Securities filed as exhibits
to the Registration Statement comply with the requirements of the
Indenture applicable thereto; the Securities have been duly and
validly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to
the provisions of this Agreement, the Indenture and the Officers'
Certificate against payment of the consideration therefor, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
equity principles (regardless of whether enforcement is considered in
a proceeding in equity or at law); and each holder of Securities will
be entitled to the benefits of the Indenture.
(vii) The information in the Prospectus under the
captions "Description of the Notes," "Description of Debt Securities,"
"Particular Terms of the Senior Debt Securities," "Particular Terms of
the Subordinated Debt Securities" and "Description of Capital Stock"
to the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been
reviewed by such counsel and is correct in all material respects.
(viii) The Indenture is qualified under the 1939
Act.
(ix) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no stop
12
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the SEC; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such supplement, shall have been filed in the manner and within the
time period required by Rule 424(b), or if the filing of the Rule 434
Term Sheet is required pursuant to Rule 434, the Rule 434 Term Sheet
will be filed in the manner and within the time period required by
Rule 434.
(x) At the time it became effective, the
Registration Statement (other than the financial statements and
related schedules and other financial information included or
incorporated by reference therein), complied as to form in all
material respects with the requirements of the 1933 Act, the 1939 Act
and the regulations under each of those Acts.
(xi) The execution, delivery and performance by
the Company of this Agreement, the Indenture and the Securities, the
performance by the Company of its agreements herein and therein and
the incurrence by the Company of the indebtedness to be evidenced by
the Securities will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, any Material Contract nor will such action result in any
violation of the provisions of the charter or by-laws of the Company
or any law, administrative regulation or administrative or court order
or decree known to such counsel to be applicable to the Company of any
court or governmental agency, authority or body or any arbitrator
having jurisdiction over the Company. For purposes of the preceding
sentence, "Material Contract" shall mean each indenture, loan
agreement, contract, agreement or arrangement, as each shall have been
amended to the date of such opinion, filed as an exhibit to, or
incorporated by reference in, the most recent Annual Report to the SEC
on Form 10-K of the Company or any report filed since the date of such
report with the SEC under Section 13 of the 1934 Act.
(xii) To the best of such counsel's knowledge,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be described or
referred to in the Registration Statement or Prospectus or to be filed
as exhibits thereto other than those described or referred to therein
or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material
respects.
(xiii) No authorization, consent, approval, order or
decree of any court or governmental agency or body including the SEC
is required for the consummation by the Company of the transactions
contemplated by this Agreement or in connection with the sale of the
Securities hereunder, except such as may be required under the 1933
13
Act, the 1933 Act Regulations, the 1939 Act, the 1939 Act Regulations
or state securities laws.
(xiv) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus (other than the
financial statements and related schedules and other financial
information included or incorporated by reference therein) complied
when filed or, if amended, when so amended, as to form in all material
respects with the 1934 Act and the 1934 Act Regulations thereunder.
(3) OPINION OF COUNSEL TO THE UNDERWRITERS. The
opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel to the Underwriters,
covering the matters referred to in subparagraph (2) under the
subheadings (i) (solely with respect to the Company) and (v) to (xi).
(4) RELIANCE BY COUNSEL. In rendering their opinion,
the General Counsel of the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ may rely
(A) as to matters involving the application of laws of any
jurisdiction other than the States of Delaware and Illinois or the
United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed
to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials.
(5) DISCLOSURE. In giving their opinions required by
subsections (a)(1), (a)(2) and (a)(3) of this Section, the General
Counsel of the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇, respectively, shall each additionally state that nothing has
come to their attention that causes them to believe that the
Registration Statement (other than the financial statements and
related schedules and other financial information included or
incorporated by reference therein), at the time it became effective
(or, if an amendment to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Company with the SEC subsequent to
the effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such
filing, as the case may be) and at the date hereof and at the Closing
Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus (other than the financial statements and related
schedules and other financial information included or incorporated by
reference therein), at the date hereof and at the Closing Date
(included or) includes an untrue statement of a material fact or
(omitted or) omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
14
The Company hereby requests that counsel render the opinions
provided for in Sections 5(a)(l) and 5(a)(2) of this Agreement, on its
behalf.
(b) OFFICER'S CERTIFICATE. On the date hereof and on the
Closing Date there shall not have been since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business; and the
Underwriters shall have received a certificate or certificates of the
chief financial officer, the treasurer or any assistant treasurer of
the Company, substantially in the form of APPENDIX I hereto and dated
as of the Closing Date, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties of
the Company contained in Section 1 hereof are true and correct with
the same force and effect as though expressly made at and as of the
Closing Date, (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed,
complied with or satisfied hereunder at or prior to the Closing Date,
and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the SEC.
(c) COMFORT LETTER. The Company shall have requested and
caused Ernst & Young LLP to have furnished to the Representatives, a
letter, dated as of each Representation Date, and otherwise in form
and substance satisfactory to the Representatives, confirming that
they are independent public accountants within the meaning of the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and that they have performed a review of the audited
financial information of the Company for the year ended December 31,
2002 and the unaudited interim financial information of the Company
for the three-month period ended March 31, 2003, substantially in the
form attached as Appendix A.
(d) RATINGS. With respect to the purchase of the
Securities by the Underwriters, none of ▇▇▇▇▇'▇, S&P or Fitch shall
have lowered its rating as to the Securities since the date on which
the Company agreed to issue and sell the Securities nor, since such
date, shall any of such rating agencies have publicly announced (other
than a reaffirmation of a previous announcement) that it has under a
surveillance or review with possible negative implications its rating
of the Securities.
(e) ADDITIONAL INFORMATION. Prior to the Closing Date the
Company shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
15
(f) RANKING. The Securities are not junior or subordinated
to any other indebtedness of the Company.
(g) OTHER DOCUMENTS. On the date hereof and on the Closing
Date, counsel to the Underwriters shall have been furnished with such
documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of
the Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to
the Underwriters and to counsel to the Underwriters.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by the Representatives by notice to the Company (in
writing, or orally if promptly confirmed in writing) at any time and
any such termination shall be without liability of any party to any
other party, except that the covenant regarding the provision of an
earnings statement set forth in Section 4(f) hereof, the provisions
concerning payment of expenses set forth in Section 8 hereof, the
indemnity and contribution agreements set forth in Section 7 hereof,
the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 10 hereof and the
provisions concerning governing law and forum set forth in Section 14
hereof shall remain in effect.
The documents required to be delivered by this Section 5
shall be delivered at the office of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
counsel for the Underwriters, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
on the applicable Representation Date.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.
If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied, because
of any termination pursuant to Section 11 hereof or because of any
refusal, inability or failure on the part of the Company to perform
any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
16
Underwriter and each person who controls any Underwriter within the
meaning of either the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act, the 1934
Act or other Federal or state statutory law or regulation, at common
law 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 a material
fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in
the Prospectus, or in any amendment thereof or supplement thereto, 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 agrees to
reimburse each such indemnified party, as incurred, for any and all
legal or other expenses whatsoever, as incurred (including fees and
disbursements of counsel chosen by the Underwriters) reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; 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
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, the directors, officers, employees and agents of
the Company, and each person who controls the Company within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements described in
Schedule I which appear in the Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 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 this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
17
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such
action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying
party; provided, however, that in no event shall the indemnifying
party be liable for the expenses of more than one separate counsel
(plus any local counsel) representing the indemnified parties who are
parties to such action. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriters agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the
18
Underwriters from the offering of the Securities; provided, however,
that in no case shall any Underwriter (except as may be provided in
any agreement among the Underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and of the Underwriters in connection
with the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. Benefits received by
the Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page
of the Prospectus. Relative fault shall be determined by reference to,
among other things, whether any alleged untrue statement or omission
relates to information provided by the Company or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such alleged untrue statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11 (f)
of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each person who controls an Underwriter within the
meaning of either the 1933 Act or the 1934 Act and each director,
officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the 1933 Act or the
1934 Act, and each director, officer, employee or agent of the Company
shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph
(d).
8. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
19
(c) The preparation, printing or other reproduction,
issuance and delivery of the Securities, including any fees and
expenses relating to the use of book-entry Securities;
(d) The fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any calculation
agent;
(e) The qualification of the Securities under state
securities laws in accordance with the provisions of Section 4(g)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky Survey and any
Legal Investment Survey;
(f) The printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto;
(g) The preparation, printing or other reproduction and
delivery to the Underwriters of copies of the Indenture and all
supplements and amendments thereto;
(h) Any fees charged by rating agencies for the rating of
the Securities;
(i) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.
or listing on a securities exchange;
(j) Any advertising and other out-of-pocket expenses of the
Underwriters incurred with the approval of the Company;
(k) The cost of providing any CUSIP or other identification
numbers for the Securities; and
(l) The fees and expenses of DTC (as defined in the
Indenture) and any nominees thereof in connection with the Securities.
9. DEFAULT BY AN UNDERWRITER.
If any one or more Underwriters shall fail to purchase and
pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their
names in Schedule II hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining
20
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in
the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all
of the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability,
if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
The covenant regarding the provision of an earnings
statement set forth in Section 4(f) hereof, the provisions concerning
payment of expenses set forth in Section 8 hereof, the provisions
concerning governing law and forum set forth in Section 14 hereof and
all representations, warranties, agreements, indemnities and other
statements of the Company or its officers set forth in this Agreement
or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of an Underwriter
or any controlling person of such Underwriter, or by or on behalf of
the Company, and shall survive delivery of and payment for the
Securities. The provisions of Section 7 shall survive the termination
or cancellation of this Agreement.
11. TERMINATION OF THIS AGREEMENT.
This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the
Company prior to the Closing Date (i) if there shall have been, since
the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, or (ii) if, since the
date of this Agreement, there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak
or escalation of hostilities or other national or international
calamity or crisis the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to
21
proceed with the offering and delivery of the Securities, or (iii) if,
since the date of this Agreement, trading in any securities of the
Company shall have been suspended by the SEC or a national securities
exchange or the over-the-counter markets, or if trading generally on
either the American Stock Exchange, the New York Stock Exchange or the
over-the-counter markets shall have been suspended, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by either of said
Exchanges, the over-the-counter markets or by order of the SEC or any
other governmental authority, or if a banking moratorium shall have
been declared by either Federal or New York authorities or if a
banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign
currency or currencies in which the Securities are denominated or
payable, or if a material disruption in commercial banking or
securities settlement or clearance service in such country shall have
occurred, or (iv) if the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as of
the date of this Agreement shall have been lowered since that date or
if any such rating agency shall have publicly announced (other than a
reaffirmation of a previous announcement) since such date that it has
under a surveillance or review, with possible negative implications,
its rating of any debt securities of the Company, or (v) if there
shall have come to the Representatives' attention any facts that would
cause the Representatives to reasonably believe that the Prospectus,
at the time it was required to be delivered to the Underwriters,
included an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances existing at the time of such delivery,
not misleading.
12. NOTICES.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either delivered
by hand, by mail or by telex, telecopier or telegram, and any such
notice shall be effective when received at the address specified
below.
If to the Company:
▇▇▇▇▇▇ Rubbermaid Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Citigroup Global Markets Inc.:
Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
22
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Debt Syndicate Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as such party may designate from
time to time by notice duly given in accordance with the terms of this
Section 12.
13. PARTIES.
This Agreement shall inure to the benefit of and be binding
upon each Underwriter and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and their
heirs and legal representatives, any legal or equitable right, remedy,
claim or obligation under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive
benefit of and binding upon the parties hereto and their respective
successors and said controlling persons and officers and directors and
their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities shall be
deemed to be a successor by reason merely of such purchase.
14. APPLICABLE LAW.
This Agreement will be governed by and construed in
accordance with the laws of the State of New York. Any suit, action
or proceeding brought by the Company against an Underwriter in
connection with or arising under this Agreement shall be brought
solely in the state or federal court of appropriate jurisdiction
located in The City of New York.
23
If the foregoing is in accordance with the Underwriters'
understanding of our agreement, please sign and return to the Company
a counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Underwriters
and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇ RUBBERMAID INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
---------------------------
Title: Executive Director
---------------------------
For themselves and the other
several Underwriters, if any,
named in Schedule II to the foregoing Agreement.
24
SCHEDULE I
Underwriting Agreement dated May 1, 2003
Registration Statement Nos.: 333-88050 and 333-103773
Representatives: Citigroup Global Markets Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Title, Purchase Price and Description of Securities:
Title: 4.00% Notes due 2010
Principal amount: $250,000,000
Indenture: Indenture dated as of November 1, 1995 (as amended),
between the Company and JPMorgan Chase Bank (formerly The Chase
Manhattan Bank (National Association)), as Trustee.
Purchase price: 99.026% of principal amount, plus accrued
interest, if any, from May 6, 2003 to the date of delivery.
Sinking fund provisions: None
Redemption provisions: In whole or in part at any time and from
time to time at the option of the Company at a redemption price
equal to the greater of (i) 100% of the principal amount of the
notes being redeemed on the redemption date and (ii) the Make-
Whole Amount (as defined in the Prospectus), plus, in each case,
accrued interest to the date of redemption.
Other provisions: None
Closing Date, Time and Location:
10:00 a.m., Chicago time
May 6, 2003 at the offices
of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
in Chicago, Illinois
Modification of items to be covered by the letter from Ernst & Young
delivered pursuant to Section 5(c) at the date hereof: None
Information provided by or on behalf of the several Underwriters for
purposes of Section 7(b):
1. The second sentence of the second full paragraph on page S-11 of
the Prospectus Supplement beginning "The underwriters have advised
▇▇▇▇▇▇ ..."
2. The third full paragraph on page S-11 of the Prospectus
Supplement beginning "The underwriters initially propose..."
3. The fifth full paragraph on page S-11 of the Prospectus
Supplement beginning "In connection with the offering of the notes..."
SCHEDULE II
Principal Amount
of Securities to be
Underwriters Purchased
------------ -------------------
Citigroup Global Markets Inc. $87,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $87,500,000
Banc of America Securities LLC $25,000,000
Barclays Capital $25,000,000
Commerzbank Securities $25,000,000