Exhibit 1.1
HASBRO, INC.
UNDERWRITING AGREEMENT
Hasbro, Inc., a Rhode Island corporation ("Company"), proposes to
issue and sell from time to time certain of its debt securities registered
under the registration statement referred to in Section 1(a) ("Registered
Securities"). The Registered Securities, which consist of senior debt
securities ("Senior Securities") and subordinated debt securities
("Subordinated Securities"), will be issued under an indenture relating to
the Senior Securities, between the Company and a banking institution as
trustee, and an indenture relating to the Subordinated Securities, between
the Company and a banking institution, as trustee (each such indenture, as
amended or supplemented from time to time, the applicable indenture or
both, as the context may require, being hereinafter referred to as the
"Indenture", and each such trustee, the applicable trustee or both, as the
context may require, being hereinafter referred to as the "Trustee") in one
or more series, which series may vary as to interest rates, maturities,
redemption provisions, convertibility, selling prices and other terms, with
all such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of the Registered
Securities will be sold pursuant to a Terms Agreement referred to in
Section 2, for resale in accordance with terms of offering determined at
the time of sale.
The Registered Securities involved in any such offering are
hereinafter referred to as the "Securities". The firm or firms which agree
to purchase the Securities are hereinafter referred to as the "Underwriters"
of such Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section
2 are hereinafter referred to as the "Representatives"; provided, however,
that if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives", as used in this Agreement (other
than in Sections 1(b), 4(b), 5 and 6 and the second sentence of Section 2),
shall mean the Underwriters.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-44101), including a
prospectus, relating to the Registered Securities and the shares
of the Company's common stock, par value $0.50 per share ("Common
Stock"), including the associated preferred stock purchase
rights, into which the Registered Securities may be convertible
has been filed with the Securities and Exchange Commission (the
"Commission") and has become effective. Such registration
statement, as amended at the time of any Terms Agreement referred
to in Section 2, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration
Statement, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Securities
Act of 1933, as amended (the "Act"), including all material
incorporated by reference therein, is hereinafter referred to as
the "Prospectus". For the purposes of this Agreement, a
prospectus supplement shall be deemed to have supplemented the
Prospectus to reflect the terms of the Securities and the terms
of the offering thereof only with respect to the offering of
Securities to which such supplement relates.
(b) On the effective date of the registration statement
relating to the Registered Securities, such registration
statement conformed in all respects to the requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act")
and the rules and regulations of the Commission (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, and, on the date of each Terms Agreement referred to
in Section 2, the Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except
that the foregoing does not apply to statements in or omissions
from (i) any of such documents based upon written information
furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein or (ii)
that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification under the Trust
Indenture Act (Form T-1) of either Trustee.
(c) The accountants who certified the financial statements
included in the Registration Statement are independent public
accountants as required by the Act and the Rules and Regulations.
(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Rhode Island, with corporate power and authority to own
or lease its properties and conduct its business as described in
the Registration Statement. Each of the subsidiaries of the
Company which are "Significant Subsidiaries" as defined in
Regulation S-X (collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own or lease its properties
and conduct its business as described in the Registration
Statement. The Company and each of the Subsidiaries are duly
qualified to transact business in all jurisdictions in which the
conduct of their business requires such qualification, except
where the failure to be so qualified would not have a material
adverse effect on the Company. Except as may be set forth on
Schedule 1(d) to this Agreement, the outstanding shares of
capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable
and owned by the Company or another Subsidiary free and clear of
all liens, encumbrances and equities and claims, and no options,
warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations
into shares of capital stock or ownership interests in the
Subsidiaries are outstanding.
(e) The outstanding shares of common stock of the Company
have been duly authorized and validly issued and are fully paid
and non-assessable. Neither the filing of the Registration
Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights, other
than those which have been waived or satisfied, for or relating
to the registration of any securities of the Company.
2. Purchase and Offering of Securities. The obligation of the
Underwriters to purchase the Securities will be evidenced by an exchange of
telegraphic or other written communications (the "Terms Agreement") at the
time the Company determines to sell the Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will
be Underwriters, the names of any Representatives, the principal amount to
be purchased by each Underwriter, and the purchase price to be paid by the
Underwriters and the terms of the Securities not already specified in the
Indenture, including, but not limited to, rank, interest rate, maturity,
any redemption provisions, any sinking fund requirements, any
convertibility provisions and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and
payment and any details of the terms of offering that should be reflected
in the prospectus supplement relating to the offering of the Securities.
The obligations of the Underwriters to purchase the Securities will be
several and not joint. It is understood that the Underwriters propose to
offer the Securities for sale as set forth in the Prospectus. The
Securities delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and registered in
such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities pursuant
to delayed delivery contracts, the Company authorizes the Underwriters to
solicit offers to purchase Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto (the
"Delayed Delivery Contracts") with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and
charitable institutions. On the Closing Date the Company will pay, as
compensation to the Representatives for the accounts of the Underwriters,
the fee set forth in such Terms Agreement in respect of the principal
amount of Securities to be sold pursuant to Delayed Delivery Contracts (the
"Contract Securities"). The Underwriters will not have any responsibility
in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Securities to
be purchased by the several Underwriters and the aggregate principal amount
of Securities to be purchased by each Underwriter will be reduced pro rata
in proportion to the principal amount of Securities set forth opposite each
Underwriter's name in such Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro
rata and so advise the Company. The Company will advise the
Representatives not later than the business day prior to the Closing Date
of the principal amount of Contract Securities.
3. Certain Agreements of the Company. The Company agrees with
the several Underwriters that it will furnish to Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Skadden, Arps"), counsel for the Underwriters, one
signed copy of the registration statement relating to the Registered
Securities, including all exhibits, in the form it became effective and of
all amendments thereto and that, in connection with each offering of
Securities:
(a) The Company will file the Prospectus with the
Commission pursuant to and in accordance with subparagraph (2)
(or, if applicable and if consented to by the Representatives,
subparagraph (5)) of Rule 424(b) not later than the second
business day following the execution and delivery of the Terms
Agreement.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or
the Prospectus and will afford the Representatives a reasonable
opportunity to comment on any such proposed amendment or
supplement; and the Company will also advise the Representatives
promptly of the filing of any such amendment or supplement and of
the institution by the Commission of any stop order proceedings
in respect of the Registration Statement or of any part thereof
and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time
to amend the Prospectus to comply with the Act, the Company
promptly will prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the
Representatives' 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 4.
(d) As soon as practicable, but not later than 16 months,
after the date of each Terms Agreement, the Company will make
generally available to its security holders an earnings statement
covering a period of at least 12 months beginning after the
latest of (i) the effective date of the registration statement
relating to the Registered Securities, (ii) the effective date of
the most recent post-effective amendment to the Registration
Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date
of such Terms Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies
of the Registration Statement, including all exhibits, any
related preliminary prospectus, any related preliminary
prospectus supplement, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available
and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the
Securities for sale and the determination of their eligibility
for investment under the laws of such states and other
jurisdictions of the United States as the Representatives
designate and will continue such qualifications in effect so long
as required for the distribution.
(g) During the period of three years after the date of any
Terms Agreement, the Company will furnish to the Representatives
and, upon request, to each of the other Underwriters, if any, as
soon as practicable after the end of each fiscal year, a copy of
its annual report to shareholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a
copy of each report or definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of
1934, as amended (the "Exchange Act") or mailed to shareholders,
and (ii) from time to time, such other information concerning the
Company as the Representatives may reasonably request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters for any expenses (including reasonable
fees and disbursements of counsel) incurred by them in connection
with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws
of such states and other jurisdictions of the United States as
the Representatives may designate and the printing of memoranda
relating thereto, for any fees charged by investment rating
agencies for the rating of the Securities, for the filing fee, if
any, of the National Association of Securities Dealers, Inc.
relating to the Registered Securities and for expenses incurred
in distributing the Prospectus, any preliminary prospectuses and
any preliminary prospectus supplements to Underwriters.
(i) If the securities are not convertible into Common
Stock, for a period beginning at the time of execution of the
Terms Agreement and ending on the Closing Date, without the prior
consent of the Representatives, the Company will not offer, sell,
contract to sell or otherwise dispose of any debt securities
issued or guaranteed by the Company and having a maturity of more
than one year from the date of issue and denominated in United
States dollars or in any currency or unit thereof in which the
Securities are denominated.
4. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Securities will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and
Section 3(a) of this Agreement. No stop order suspending the
effectiveness of the Registration Statement or of any part
thereof shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the
Commission.
(b) Subsequent to the execution of the Terms Agreement,
there shall not have occurred: (i) any change, or any development
involving a prospective change, in or affecting particularly the
business, properties or results of operations of the Company or
its subsidiaries which, in the judgment of a majority in interest
of the Underwriters, including any Representatives, materially
impairs the investment quality of the Securities or the
Registered Securities; (ii) any downgrading in the rating of any
debt securities or stock of the Company by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities or stock of the Company
(other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any suspension or limitation of trading in
securities generally on the American Stock Exchange or London
Stock Exchange, or any setting of minimum prices for trading on
such exchanges, or any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters, including any
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment
for the Securities.
(c) The Representatives shall have received:
(i) an opinion, dated the Closing Date, with respect
to New York, Delaware corporate and federal securities law,
of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President - Corporate
Legal Affairs and Secretary of the Company, to the effect
that:
(A) the Company and its "significant
subsidiaries," as defined in Regulation S-X and in any
event including Hasbro International, Inc., a Delaware
corporation ("Significant Subsidiaries"), have been
duly incorporated and are existing corporations in good
standing under the laws of the jurisdictions in which
they are incorporated, as the case may be, with
corporate power and authority to own their properties
and conduct their business as described in the
Prospectus; the Company and the Significant
Subsidiaries are duly qualified to do business as a
foreign corporation in good standing in every other
jurisdiction in which the failure to qualify or be in
good standing would have a material adverse effect upon
the Company and its subsidiaries taken as a whole;
except as may be set forth on Schedule 1(d) to this
Agreement, all of the outstanding capital stock of each
Significant Subsidiary has been duly authorized and
validly issued and is owned by the Company directly or
through one or more subsidiaries, free and clear of all
liens, encumbrances, options, warrants, preemptive
rights or other rights of others;
(B) the Indenture has been duly authorized,
executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act; the
Securities have been duly authorized; the Securities,
other than any Contract Securities, have been duly
executed, authenticated, issued and delivered; the
Indenture and the Securities other than any Contract
Securities constitute, and any Contract Securities,
when executed, authenticated, issued and delivered in
the manner provided in the Indenture and sold pursuant
to Delayed Delivery Contracts, will constitute, valid
and legally binding obligations of the Company entitled
to the benefit of the Indenture and enforceable against
the Company 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 the
Securities other than any Contract Securities conform,
and any Contract Securities, when so issued and
delivered and sold, will conform, to the description
thereof contained in the Prospectus;
(C) if the Securities are to be convertible into
Common Stock, the Securities other than any Contract
Securities are, and any Contract Securities, when
executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will be, convertible into
Common Stock of the Company in accordance with the
terms of the Indenture; the shares of such Common Stock
initially issuable and/or deliverable upon conversion
of the Securities have been duly authorized and, if
hitherto unissued, reserved for issuance upon such
conversion and, when issued and/or delivered upon such
conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of such Common
Stock have been duly authorized and validly issued, are
fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and
the shareholders of the Company have no statutory or,
to such counsel's best knowledge, other preemptive
rights with respect to the Securities or the Common
Stock;
(D) no consent, approval, authorization or order
of, or filing with, any governmental agency or body or
any court is required for the consummation of the
transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in
connection with the issuance or sale of the Securities
by the Company, except such as have been obtained and
made under the Act and the Trust Indenture Act and such
as may be required under state securities or "Blue Sky"
laws;
(E) the execution, delivery and performance of
the Indenture, the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Securities
and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under,
(i) any statute, any rule, regulation or order of any
governmental agency or body or any court having
jurisdiction over the Company or any jurisdiction over
the Company or any subsidiary of the Company or any of
their properties (it being understood that such counsel
need express no opinion regarding state securities or
"Blue Sky" laws), (ii) the charter or by-laws of the
Company or any such subsidiary, or (iii) any material
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; and the Company has full corporate power and
authority to authorize, issue and sell the Securities
as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(F) the Registration Statement has become
effective under the Act, the Prospectus was filed with
the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified
therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement or of any part thereof has
been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under
the Act, and the registration statement relating to the
Registered Securities, as of its effective date, the
Registration Statement and the Prospectus, as of the
date of the Terms Agreement, and any amendment or
supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the
Act, the Trust Indenture Act and the Rules and
Regulations; such counsel has no reason to believe that
such registration statement, as of its effective date,
the Registration Statement or the Prospectus, as of the
date of the Terms Agreement, or any such amendment or
supplement, as of its 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; the descriptions in the Registration
Statement and Prospectus of statutes, legal and
governmental proceedings and contracts and other
documents are accurate and fairly present the
information required to be shown; and such counsel does
not know of any legal or government proceeding required
to be described in the Prospectus which are not
described as required or of any contracts or documents
of a character required to be described in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not
described and filed as required; it being understood
that such counsel need express no opinion as to the
financial statements or other financial data contained
in the Registration Statement or the Prospectus or any
part of the Registration Statement that shall
constitute Form T-1; and
(G) the Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by
the Company.
(ii) an opinion, dated the Closing Date, with respect
to Rhode Island law, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice
President and General Counsel of the Company, to the effect
that:
(A) the Company and its "significant
subsidiaries," as defined in Regulation S-X and in any
event including Hasbro International, Inc., a Delaware
corporation ("Significant Subsidiaries"), have been
duly incorporated and are existing corporations in good
standing under the laws of the jurisdictions in which
they are incorporated, as the case may be, with
corporate power and authority to own their properties
and conduct their business as described in the
Prospectus; the Company and the Significant
Subsidiaries are duly qualified to do business as a
foreign corporation in good standing in every other
jurisdiction in which the failure to qualify or be in
good standing would have a material adverse effect upon
the Company and its subsidiaries taken as a whole;
except as may be set forth on Schedule 1(d) to this
Agreement, all of the outstanding capital stock of each
Significant Subsidiary has been duly authorized and
validly issued and is owned by the Company directly or
through one or more subsidiaries, free and clear of all
liens, encumbrances, options, warrants, preemptive
rights or other rights of others;
(B) the Indenture has been duly authorized,
executed and delivered by the Company; the Securities
have been duly authorized; the Securities, other than
any Contract Securities, have been duly executed,
authenticated, issued and delivered; the Indenture and
the Securities other than any Contract Securities
constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner
provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally
binding obligations of the Company entitled to the
benefit of the Indenture and enforceable against the
Company 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;
(C) if the Securities are to be convertible into
Common Stock, the Securities other than any Contract
Securities are, and any Contract Securities, when
executed, authenticated, issued and delivered in the
manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will be, convertible into
Common Stock of the Company in accordance with the
terms of the Indenture; the shares of such Common Stock
initially issuable and/or deliverable upon conversion
of the Securities have been duly authorized and, if
hitherto unissued, reserved for issuance upon such
conversion and, when issued and/or delivered upon such
conversion, will be validly issued, fully paid and
nonassessable; the outstanding shares of such Common
Stock have been duly authorized and validly issued and
are fully paid and nonassessable; and the shareholders
of the Company have no statutory or, to such counsel's
best knowledge, other preemptive rights with respect to
the Securities or the Common Stock;
(D) no consent, approval, authorization or order
of, or filing with, any governmental agency or body or
any court is required for the consummation of the
transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in
connection with the issuance or sale of the Securities
by the Company, except such as have been obtained and
made under the Act and the Trust Indenture Act and such
as may be required under state securities or "Blue Sky"
laws;
(E) the execution, delivery and performance of
the Indenture, the Terms Agreement (including the
provisions of this Agreement) and any Delayed Delivery
Contracts and the issuance and sale of the Securities
and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under,
(i) any statute, any rule, regulation or order of any
governmental agency or body or any court having
jurisdiction over the Company or any jurisdiction over
the Company or any subsidiary of the Company or any of
their properties (it being understood that such counsel
need express no opinion regarding state securities or
"Blue Sky" laws), (ii) the charter or by-laws of the
Company or any such subsidiary, or (iii) any material
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; and the Company has full corporate power and
authority to authorize, issue and sell the Securities
as contemplated by the Terms Agreement (including the
provisions of this Agreement); and
(F) the Terms Agreement (including the provisions
of this Agreement) and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by
the Company.
(d) The Representatives shall have received from Skadden, Arps,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other related
matters as they may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, Skadden, Arps may rely
as to the incorporation of the Company and all other matters governed by
Rhode Island law upon the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ referred to above.
(e) The Representatives shall have received a certificate, dated
the Closing Date, of the Chairman, Vice Chairman, President or any
Executive 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, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the Registration
Statement or of any part thereof has been issued and no proceedings for
that purpose have been instituted or, to the best of their knowledge, are
contemplated by the Commission and that, subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change in the financial position or results of operation of the
Company and its subsidiaries except as set forth in or contemplated by the
Prospectus.
(f) The Representatives shall have received:
(i) a letter, dated the Closing Date, of KPMG Peat Marwick
LLP, confirming that they are independent public accountants
within the meaning of the Act and the applicable published Rules
and Regulations thereunder and stating in effect that:
(A) in their opinion, the financial statements and
schedules of the Company and its subsidiaries examined by
them and included or incorporated by reference in the
Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations;
(B) they have made a review of any unaudited financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Prospectus in accordance
with standards established by the American Institute of
Certified Public Accountants, as indicated in their report
or reports attached to such letter;
(C) on the basis of the review referred to in (B)
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:
(1) the unaudited financial statements, if any,
included or incorporated by reference in the Prospectus
do not comply in form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or are not in
conformity with generally accepted accounting
principles applied on a basis substantially consistent
with that of the audited financial statements of the
Company and its subsidiaries included or incorporated
by reference in the Prospectus;
(2) the unaudited financial information of the
Company, if any, included in the Prospectus and derived
from unaudited consolidated financial statements or
audited financial statements included or incorporated
by reference in the Prospectus does not agree with the
amounts set forth in such unaudited or audited
consolidated financial statements or was not determined
on a basis substantially consistent with that of the
financial statements from which it was derived;
(3) on the basis of a reading of any unaudited
pro forma financial information included in or
incorporated into the Registration Statement or the
Prospectus ("Pro Forma Financial Information"),
carrying out certain specified procedures, inquiries of
certain officials who have responsibility for relevant
financial and accounting matters and proving the
arithmetic accuracy of the application of any pro forma
adjustments to the historical amounts in the Pro Forma
Financial Information, nothing came to their attention
which caused them to believe that the Pro Forma
Financial Information, if any, does not comply in form
and material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments, if any, have not been
properly applied to the historical amounts in the
compilation of such statements; and
(4) at the date of the latest available balance
sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the
Closing Date, 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 assets, as compared with amounts shown
on the latest balance sheet included or incorporated by
reference in the Prospectus; or
(5) for the period from the 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
or in the total or per share amounts of consolidated
income before extraordinary items or net income or in
the ratio of earnings to fixed charges;
except in all cases set forth in clauses (4) and (5) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(6) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and
other financial information included or incorporated by
reference in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other
financial information are derived from the general
accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's
accounting system or are derived directly from such
records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in
such letter and have found such dollar amounts,
percentages and other financial information to be in
agreement with such results, except as otherwise
specified in such letter; and
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for the purposes of this Section 4(f).
The Company will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as they
reasonably request.
If any of the conditions specified in this Section 4 shall not
have been fulfilled when and as required by this Agreement, or if any of
the certificates, opinions, written statements or letters furnished to you
or to Skadden, Arps pursuant to this Section 4 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Skadden, Arps, all your obligations hereunder may be cancelled by you at,
or at any time prior to, the Closing Date. Notice of such cancellation
shall be given to the Company in writing, or by telephone, telex or
telegraph, confirmed in writing.
5. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act, against any and all losses, liabilities, claims, damages
and reasonable expenses whatsoever as incurred (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(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 any amendment thereof, or any related preliminary
prospectus or the Prospectus, or in any supplement thereto or amendment
thereof, 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; provided, however, that the
Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense 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, if any, specifically
for use therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and
any and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in settlement of any
claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (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
any amendment thereof, or any related preliminary prospectus or 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, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense 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, if any, specifically
for use therein. This indemnity will be in addition to any liability which
any Underwriter may otherwise have including under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which it may have under this Section 5). 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 it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the employment of such counsel
shall have been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
or (iii) such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from
or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct
the defense of such action on behalf of the indemnified party or parties),
in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
6. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 5 hereof
is for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company
and the Underwriters shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after deducting
in the case of losses, claims, damages, liabilities and expenses suffered
by the Company any contribution received by the Company from persons, other
than the Underwriters, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the Act
or Section 20(a) of the Exchange Act, officers of the Company who signed
the Registration Statement and directors of the Company) as incurred to
which the Company and one or more of the Underwriters may be subject, in
such proportions as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the
Securities or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 5 hereof, in such proportion
as is appropriate to reflect not only the relative benefits referred to
above but also the relative fault of the Company and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as (x)
the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y)
the underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Company and of the Underwriters
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 6 and the preceding
sentence, 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 that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 6, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, except that 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. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit
or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each
party or parties from whom contribution may be sought, but the omission to
so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any obligation it or they may have
under this Section 6 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its
consent; provided, however, that such consent was not unreasonably
withheld.
7. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Securities under the Terms
Agreement and the aggregate principal amount of the Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of the Securities, the
Representatives may make arrangements satisfactory to the Company for the
purchase of such Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments under this Agreement and the Terms Agreement,
to purchase the Securities that such defaulting Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of the Securities with respect to which such
default or defaults occur exceeds 10% of the total principal amount of the
Securities and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities by other persons are not made
within 36 hours after such default, such Terms Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the
Company, except as provided in Section 8. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting Underwriter from
liability for its default. The respective commitments of the several
Underwriters for the purposes of this Section shall be determined without
regard to reduction in the respective Underwriters' obligations to purchase
the aggregate principal amounts of Securities set forth opposite their
names in the Terms Agreement as a result of Delayed Delivery Contracts
entered into by the Company.
The foregoing obligations and agreements set forth in this
Section will not apply if the Terms Agreement specifies that such
obligations and agreements will not apply.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters
set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of
their respective representatives, officers or directors or any controlling
person and will survive delivery of and payment for the Securities. If
the Terms Agreement is terminated pursuant to Section 7 or if for any
reason the purchase of the Securities by the Underwriters under the Terms
Agreement is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 3, without
derogation of the liability of any defaulting Underwriter pursuant to
Section 7, and the respective obligations of the Company and the
Underwriters pursuant to Section 5 and 6 shall remain in effect. If the
purchase of the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement
pursuant to Section 7 or the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 4(b), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by them in connection with
the offering of the Securities.
9. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed
and confirmed to them at their addresses furnished to the Company in
writing for the purpose of communications hereunder or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
Hasbro. Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Vice President and Treasurer, with a
copy to Hasbro, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President-Corporate Legal
Affairs and Secretary.
10. Successors. This Agreement will inure to the benefit of and
be binding upon the Company and such Underwriters as are identified in
Terms Agreements and their respective successors and the officers and
directors and controlling persons referred to in Section 5 and 6, and no
other person will have any right or obligation hereunder. The term
"successors" shall not include a purchaser of any of the Securities from
any of the underwriters merely because of such purchase.
11. Applicable Law. This Agreement and the Terms Agreement
shall be governed by, and construed in accordance with, the laws of the
State of New York without reference to principles of conflicts of law.
Dated as of ________, 1998.
HASBRO, INC.
By:_______________________
Title:
SCHEDULE I
Name of Underwriter Number of Securities to be Purchased
Total. . . . . .__________
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed
and returned to the address shown below so as to arrive not later
than 9:00 A.M., New York time, on ______________, 19___.)
DELAYED DELIVERY CONTRACT
_______________, 199__.
HASBRO, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
Pawtucket, Rhode Island 02862-0200
Gentlemen:
The undersigned hereby agrees to purchase from Hasbro, Inc., a
Rhode Island corporation ("Company"), and the Company agrees to sell to the
undersigned, [If a delayed closing, insert -- as of the date hereof, for
delivery on ________________, 19___ ("Delivery Date"),] ____________
principal amount of the Company's Debt Securities ("Securities"), offered
by the Company's Prospectus dated _______________, 199__ and a Prospectus
Supplement dated _______________, 199__, relating thereto, receipt of
copies of which is hereby acknowledged, at [__% of the principal amount
thereof plus accrued interest, if any,] and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
The undersigned will purchase from the Company as of the date
hereof, the delivery on the dates set forth below, Securities in the
principal amounts set forth below:
DELIVERY DATE PRINCIPAL AMOUNT
___________________ _______
___________________ _______
Each of such delivery dates is hereinafter referred to as a Delivery Date.
Payment for the Securities that the undersigned has agreed to
purchase for delivery on each Delivery Date shall be made to the Company or
its order by certified or official bank check in New York Clearing House
(next day) funds at the office of _______________________ at ___ on such
Delivery Date upon delivery to the undersigned of the Securities to be
purchased by the undersigned for delivery on such Delivery Date in
definitive fully registered form and in such denominations and registered
in such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business
days prior to such Delivery Date.
It is expressly agreed that the provisions for delayed delivery
and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a
purchase as of the date of this Contract; that the obligation of the
Company to make delivery of and accept payment for, and the obligation of
the undersigned to take delivery of and make payment for, Securities on
[the][each] Delivery Date shall be subject only to the conditions that (1)
investment in the Securities shall not at [the] [such] Delivery Date be
prohibited under the laws of any jurisdiction in the United States to which
the undersigned is subject and (2) the Company shall have sold to the
Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of
the date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth
below notice to such effect, accompanied by copies of the opinions of
counsel for the Company delivered to the Underwriters in connection
therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in
the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to
the Company, it is requested that the Company sign the form of acceptance
below and mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is so mailed
or delivered.
Yours very truly,
___________________________
(Name of Purchaser)
By:________________________
___________________________
(Title of Signatory)
___________________________
___________________________
(Address of Purchaser)
Accepted as of the above date.
HASBRO, INC.
By:_______________________
[Insert Title]
I.