Exhibit 1.1
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RAYOVAC CORPORATION
(a Wisconsin corporation)
7,500,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: June 20, 2001
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Table of Contents
PAGE
SECTION 1. Representations and Warranties............................................................3
(a) Representations and Warranties by the Company.............................................3
(i) Compliance with Registration Requirements......................................3
(ii) Incorporated Documents.........................................................4
(iii) Independent Accountants........................................................4
(iv) Financial Statements...........................................................4
(v) No Material Adverse Change in Business.........................................4
(vi) Good Standing of the Company...................................................5
(vii) Good Standing of Subsidiaries..................................................5
(viii) Capitalization.................................................................6
(ix) Authorization of Agreement.....................................................6
(x) Authorization and Description of Securities....................................6
(xi) Absence of Defaults and Conflicts..............................................7
(xii) Absence of Labor Dispute.......................................................7
(xiii) Absence of Proceedings.........................................................8
(xiv) Accuracy of Exhibits...........................................................8
(xv) Possession of Intellectual Property............................................8
(xvi) Absence of Further Requirements................................................9
(xvii) Possession of Licenses and Permits.............................................9
(xviii) Title to Property..............................................................9
(xix) Investment Company Act........................................................10
(xx) Environmental Laws............................................................10
(xxi) Registration Rights...........................................................11
(xxii) Stabilization or Manipulation.................................................11
(xxiii) Accounting Controls...........................................................11
(xxiv) Tax Returns and Payment of Taxes..............................................11
(xxv) No Association with NASD......................................................12
(xxvi) ERISA.........................................................................12
(xxvii) Statistical and Market Data..............................................................12
(b) Representations and Warranties by the Selling Shareholders...............................13
(i) Accurate Disclosure by Selling Shareholders...................................13
(ii) Authorization of Agreements...................................................13
(iii) Valid Title...................................................................14
(iv) Due Execution of Power of Attorney and Custody Agreement.................................14
(v) Absence of Manipulation.......................................................15
(vi) Absence of Further Requirements...............................................15
(vii) Certificates Suitable for Transfer............................................15
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PAGE
(viii) Irrevocable Obligations.......................................................15
(ix) No Association with NASD......................................................16
(x) Power and Authority...........................................................16
(c) Officer's Certificates...................................................................16
SECTION 2. Sale and Delivery to Underwriters; Closing...............................................17
(a) Initial Securities.......................................................................17
(b) Option Securities........................................................................17
(c) Payment..................................................................................18
(d) Denominations; Registration..............................................................18
SECTION 3. Covenants of the Company.................................................................18
(a) Compliance with Securities Regulations and
Commission Requests......................................................................18
(b) Filing of Amendments.....................................................................19
(c) Delivery of Registration Statements......................................................19
(d) Delivery of Prospectuses.................................................................19
(e) Continued Compliance with Securities Laws................................................20
(f) Blue Sky Qualifications..................................................................20
(g) Rule 158.................................................................................21
(h) Restriction on Transfer..................................................................21
(i) Reporting Requirements...................................................................21
(j) Restriction on Manipulation..............................................................21
SECTION 4. Covenants of the Selling Shareholders....................................................22
(a) Restriction on Transfer..................................................................22
(b) Restriction on Manipulation..............................................................22
SECTION 5. Payment of Expenses......................................................................22
(a) Expenses.................................................................................22
(b) Expenses of the Selling Shareholders.....................................................23
(c) Termination of Agreement.................................................................23
(d) Allocation of Expenses...................................................................23
SECTION 6. Conditions of Underwriters'Obligations...................................................23
(a) Effectiveness of Registration Statement..................................................24
(b) Opinion of Counsel for Company and the Selling Shareholders..............................24
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PAGE
(c) Opinion of Counsel for Underwriters......................................................24
(d) Officers'Certificate.....................................................................25
(e) Selling Shareholders'Certificate.........................................................25
(f) Accountant's Comfort Letters.............................................................25
(g) Bring-down Comfort Letters...............................................................26
(h) Approval for Listing.....................................................................26
(i) Lock-up Agreements.......................................................................26
(j) Custody Agreement........................................................................26
(k) Conditions to Purchase of Option Securities..............................................26
(i) Officers'Certificate..........................................................26
(ii) Selling Shareholder's Certificate.............................................26
(iii) Opinion of Counsel for Company and the Selling Shareholders...................27
(iv) Opinion of Counsel for Underwriters...........................................27
(v) Bring-down Comfort Letters....................................................27
(m) Additional Documents.....................................................................27
(n) Termination of Agreement.................................................................28
SECTION 7. Indemnification..........................................................................28
(a) Indemnification of Underwriters by the Company...........................................28
(b) Indemnification of Underwriters by the Selling Shareholders..............................29
(c) Indemnification of Company, Directors and Officers and Selling Shareholders..............31
(d) Actions Against Parties; Notification....................................................31
(e) Settlement Without Consent if Failure to Reimburse.......................................32
(f) Other Agreements with Respect to Indemnification.........................................32
SECTION 8. Contribution.............................................................................32
SECTION 9. Representations, Warranties and Agreements to Survive Delivery...........................34
SECTION 10. Termination of Agreement.................................................................34
(a) Termination; General.....................................................................34
(b) Liabilities..............................................................................35
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PAGE
SECTION 11. Default by One or More of the Underwriters...............................................35
SECTION 12. Default by One or More of the Selling Shareholders or the Company...............................36
SECTION 13. Notices..................................................................................37
SECTION 14. Parties..................................................................................37
SECTION 15. Governing Law and Time...................................................................38
SECTION 16. Effect of Headings.......................................................................38
SECTION 17. Counterparts.............................................................................38
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SCHEDULES
SCHEDULE A LIST OF UNDERWRITERS
SCHEDULE B LIST OF SELLING SHAREHOLDERS
SCHEDULE B-1 LIST OF OVER-ALLOTMENT SELLING SHAREHOLDERS
SCHEDULE C PRICING INFORMATION
SCHEDULE D LIST OF PERSONS SUBJECT TO LOCK-UP
SCHEDULE E LIST OF SUBSIDIARIES OF THE COMPANY
EXHIBIT A-1 FORM OF OPINION OF COMPANY'S GENERAL COUNSEL
EXHIBIT A-2 FORM OF OPINION OF COMPANY'S COUNSEL
EXHIBIT A-3 FORM OF OPINION OF CATEGORY 1 AND CATEGORY 2 SELLING
SHAREHOLDERS' COUNSEL
EXHIBIT A-4 FORM OF OPINION OF CATEGORY 2 SELLING SHAREHOLDERS' COUNSEL
EXHIBIT B FORM OF LOCK-UP LETTER
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RAYOVAC CORPORATION
(a Wisconsin corporation)
7,500,000 Shares of Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
June 20, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Representatives of the several
Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Rayovac Corporation, a Wisconsin corporation (the "Company"), and the
persons listed on Schedule B hereto (collectively, the "Selling Shareholders")
confirm their respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇▇▇
▇▇▇▇▇ Barney") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted as hereinafter provided in Section 11 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and UBS Warburg LLC are
acting as representatives (in such capacity, the "Representatives"), with
respect to (i) the sale by the Company and the Selling Shareholders and the
purchase by the Underwriters, acting severally and not jointly, of the number of
shares of Common Stock, par value $0.01 per share, of the Company ("Common
Stock") set forth in Schedule A hereto and (ii) the grant by the Selling
Shareholders listed on Schedule B-1 hereto, acting severally and not jointly, to
the Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 1,125,000 additional shares
of Common Stock to cover over-allotments, if any. The aforesaid 7,500,000 shares
of Common Stock (the "Initial Securities") to be purchased by the Underwriters,
and all or any part of the 1,125,000 shares of Common Stock subject to the
option described in Section 2(b) hereof (the "Option Securities"), are
hereinafter called, collectively, the "Securities."
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The Company and the Selling Shareholders understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-59086), as amended
by Amendment Nos. 1, 2 and 3 thereto, covering the registration of certain of
its securities, including the Securities, under the Securities Act of 1933, as
amended (the "1933 Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act, including the related preliminary prospectus or prospectuses and
related preliminary prospectus supplement or supplements. Promptly after
execution and delivery of this Agreement, the Company will prepare and file a
final prospectus supplement in accordance with Rule 424(b) of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations").
Each prospectus, as supplemented by any related prospectus supplement, relating
to the Securities used before such registration statement became effective,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, is herein called a "preliminary prospectus." Such
registration statement, including the prospectus, the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus dated June 20, 2001, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, as supplemented by the final prospectus supplement dated June 20, 2001, in
the form first furnished to the Underwriters for use in connection with the
offering of the Securities is herein called the "Prospectus."
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, and preliminary
prospectus or the Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, and preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Act of 1934, as amended (the "1934 Act") which
is incorporated by reference in the Registration Statement, any preliminary
prospectus supplement or the Prospectus, as the case may be.
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SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
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 to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any amendments or supplements thereto was issued and at
the Closing Time (and, if any Option Securities are purchased, at the
Date of Delivery), included or will include, at the aforesaid times, an
untrue statement of a material fact or omitted or will omit, at the
aforesaid times, 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. The representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representative(s) expressly for use in the
Registration Statement or the Prospectus as specified in Section 7(c).
Each preliminary prospectus and the Prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act
Regulations complied when so filed in all material respects with the
1933 Act Regulations.
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(ii) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, when they
became effective or at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time the Prospectus was
issued and at the Closing time (and, if any Option Securities are
purchased, at the Date of Delivery), 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 to make the statements
therein not misleading.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements included in
the Registration Statement and the Prospectus, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated Subsidiaries (as defined below) at the
dates indicated and the statement of operations, shareholders' equity
and cash flows of the Company and its consolidated Subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules incorporated by reference in the Registration
Statement present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the
summary financial data included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition (financial or otherwise), 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 (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of
its Subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its Subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
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(vi) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Wisconsin and 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; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other 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 so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of the
Company (each a "Subsidiary" and, 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 where
such legal concepts are recognized, 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 so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Prospectus, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable in jurisdictions where such legal concepts are
recognized and is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity (except as set forth in the
Prospectus and except for any director or member qualifying shares);
none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary. The only Subsidiaries of the Company
are the subsidiaries listed on Schedule E hereto and, except for
Rayovac Latin America Limited, a Cayman Islands corporation, Rayovac
Overseas Corporation, a Panamanian corporation, and Rov Holding Inc., a
Delaware corporation, the Company has no "significant subsidiaries" as
defined in Section 1-02 of Regulation S-X.
(viii) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company as of April 1, 2001 was as set forth in
the Prospectus under the caption "Capitalization" (except for issuances
subsequent to April 1, 2001, if any, pursuant to this Agreement,
pursuant to reservations, agreements or employee benefit plans referred
to in the Prospectus or pursuant to the exercise of options referred to
in the Prospectus, without any modification of such agreements or
plans). The shares of issued and outstanding capital stock of the
Company, including, without limitation, the Securities
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to be purchased by the Underwriters from the Selling Shareholders, have
been, or, in the case of any Securities to be purchased by the
Underwriters in connection with the exercise of stock options under the
Company's 1996 Stock Option Plan by certain Selling Shareholders (the
"Stock Option Shares"), will be as of the Closing Time, duly authorized
and validly issued and are fully paid and non-assessable, except to the
extent such securities are assessable pursuant to Section 180.0622 of
the Wisconsin Business Corporation Law; none of the outstanding shares
of capital stock of the Company was or as of the Closing Time or at the
Date of Delivery (if any), including the Option Securities to be
purchased by the Underwriters from the Selling Shareholders, will have
been issued, or, in the case of the Stock Option Shares, will be as of
the Closing Time, in violation of the preemptive or other similar
rights of any securityholder of the Company. The Securities offered by
the Selling Shareholders to the Underwriters were issued in compliance,
in all material respects, with all federal and state securities laws.
The Securities to be offered by the Company to the Underwriters will,
as of the Closing Time, be issued in compliance, in all material
respects, with all federal and state securities laws. Except as
disclosed in the Prospectus, there are no outstanding options or
warrants to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of the
Company's capital stock or any such options, warrants, rights,
convertible securities or obligations.
(ix) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities to be purchased by the Underwriters from the Company have
been duly authorized for issuance and sale to the Underwriters pursuant
to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued, fully paid and non-assessable;
the Common Stock conforms to the descriptions thereof contained in the
Prospectus or incorporated by reference therein and such description
conforms to the rights set forth in the instruments defining the Common
Stock; no holder of the Securities will be subject to personal
liability by reason of being such a holder, except for certain
liabilities pursuant to Section 180.0622 of the Wisconsin Business
Corporation Law; and the issuance of the Securities is not subject to
the preemptive or other similar rights of any securityholder of the
Company.
(xi) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor
any of its Subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other
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agreement or instrument to which the Company or any of its Subsidiaries
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 Subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
under Agreements and Instruments that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated in this
Agreement and in the Prospectus (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") and
the compliance by the Company with its obligations under this Agreement
have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to, the Agreements and
Instruments which would reasonably be expected, either singly or in the
aggregate, to result in a Material Adverse Effect, nor will such action
result in any violation of (A) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations ("Applicable Laws") or (B) the provisions of
the charter or by-laws of the Company or any Subsidiary. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Subsidiary.
(xii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any Subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any Subsidiary's principal suppliers, manufacturers, customers,
dealers or contractors, which, in either case, may reasonably be
expected to result in a Material Adverse Effect.
(xiii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought 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 Subsidiary, which is required to be disclosed in the
Prospectus (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation
-8-
of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any Subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in
the Prospectus, including ordinary routine litigation incidental to the
business of the Company and its Subsidiaries, would not reasonably be
expected to result in a Material Adverse Effect.
(xiv) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Prospectus, including the
documents incorporated by reference therein, or to be filed as exhibits
thereto which have not been so described or filed or incorporated by
reference as required.
(xv) POSSESSION OF INTELLECTUAL PROPERTY. Except as described
in the Prospectus, the Company and its Subsidiaries own or possess the
right to utilize, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its Subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement or the consummation of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations and foreign or state securities or blue sky laws.
(xvii) POSSESSION OF LICENSES AND PERMITS. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated
-9-
by them and is in compliance with Applicable Laws, except where the
failure to possess the same or such noncompliance would not, singly or
in the aggregate, have a Material Adverse Effect; the Company and its
Subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not
have a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) TITLE TO PROPERTY. The Company and its Subsidiaries have
good and marketable title to all real property owned by the Company and
its Subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its Subsidiaries or (c) would not reasonably be
expected to result in a Material Adverse Effect; and all of the leases
and subleases material to the business of the Company and its
Subsidiaries, considered as one enterprise, and under which the Company
or any of its Subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any Subsidiary has any notice of any claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any
Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease which claim, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xix) INVESTMENT COMPANY ACT. Neither the Company nor any of its
Subsidiaries is, or upon the sale of the Securities as herein
contemplated and the application of the proceeds therefrom as described
in the Prospectus will be, an "investment company" or an entity
controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(xx) ENVIRONMENTAL LAWS. Except as described in the Prospectus
or except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
Subsidiaries is in violation of any federal,
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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, licenses, authorizations and approvals currently required for
their respective businesses and for the businesses contemplated to be
conducted upon consummation of the offering of the Securities under any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the
Company, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its Subsidiaries and
(D) to the knowledge of the Company, there are no events, facts or
circumstances that might reasonably be expected to form the basis of
any liability or obligation of the Company or any of its Subsidiaries,
including, without limitation, any order, decree, plan or agreement
requiring clean-up or remediation, or any 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 any Hazardous
Materials or any Environmental Laws. Except as described in the
Prospectus, and except for the ▇▇▇▇▇ Landfill in Madison, Wisconsin and
the Refuse Hideaway in Dane County, Wisconsin, neither the Company nor
any of its Subsidiaries has been named as a "potentially responsible
party" under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
(xxi) REGISTRATION RIGHTS. Except for those persons (i) set
forth on Schedule B hereto who have rights which are being complied
with in connection with this Offering or (ii) who have waived any such
rights (each of whom has rights consistent with the description thereof
in the Prospectus), there are no persons with registration rights or
other similar rights to have any securities registered pursuant to the
Prospectus under the 1933 Act. Except as described in the Prospectus,
there are no persons with registration rights or other similar rights
to have any securities registered by the Company under the 1933 Act.
(xxii) STABILIZATION OR MANIPULATION. Neither the Company nor any
of its officers, directors or controlling persons has taken, directly
or indirectly, any action designed
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to, or that would reasonably be expected to, cause or to result in, or
that has constituted stabilization or manipulation of the price of the
Securities in violation of Regulation M of the 1934 Act.
(xxiii) ACCOUNTING CONTROLS. The Company and its Subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance
with management's general or specific authorization; (B) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific authorization;
and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxiv) TAX RETURNS AND PAYMENT OF TAXES. The Company and its
Subsidiaries have filed all federal, state, local and foreign tax
returns that are required to have been filed by them pursuant to
applicable foreign, federal, state, local or other law or have duly
requested extensions thereof, and all such tax returns are true,
correct and complete, except insofar as the failure to file such
returns or request such extensions or any incorrectness would not
reasonably be expected to result in a Material Adverse Effect, and have
timely paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company and its Subsidiaries, except for
such taxes or assessments, if any, as are being contested in good faith
and as to which adequate reserves have been provided or where the
failure to pay would not reasonably be expected to result in a Material
Adverse Effect. The charges, accruals and reserves on the books of the
Company in respect of any income and corporation tax liability of the
Company and each Subsidiary for any years not finally determined or
which remain open to examination by applicable taxing authorities are
adequate to meet any assessments or re-assessments for additional
income tax for such years, and have been provided for in accordance
with GAAP, except to the extent of any inadequacy that would not
reasonably be expected to result in a Material Adverse Effect.
(xxv) NO ASSOCIATION WITH NASD. Neither the Company nor any of
its affiliates (within the meaning of NASD Conduct Rule 2720(b)(1)(a))
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or is an
associated person (within the meaning of Article I, Section 1(ee) of
the By-laws of the National Association of Securities Dealers, Inc.),
of, any member firm of the National Association of Securities Dealers,
Inc., other than as described on an appendix to a Selling Shareholders'
Power of Attorney and Custody Agreement (as defined herein).
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(xxvi) ERISA. Each of the Company and its subsidiaries has
fulfilled its obligations, if any, under the minimum funding standards
of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security
Act of 1974 ("ERISA") and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company and its Subsidiaries are eligible to
participate and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations. The Company and its
Subsidiaries have not incurred any unpaid liability to the Pension
Benefit Guaranty Corporation (other than for the payment of premiums in
the ordinary course) or to any such plan under Title IV of ERISA.
(xxvii) STATISTICAL AND MARKET DATA. The statistical and
market-related data included in the Prospectus are derived from sources
which the Company reasonably and in good faith believes to be accurate,
reasonable and reliable.
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDERS. Each
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter as of the date hereof, as of the Closing Time, and, if such Selling
Shareholder is selling Option Securities on a Date of Delivery, as of each such
Date of Delivery, and agrees with each Underwriter, as follows:
(i) ACCURATE DISCLOSURE BY SELLING SHAREHOLDERS. The
information furnished in writing by or on behalf of such Selling
Shareholder listed on Schedule B hereto expressly for use in the
Registration Statement, any preliminary prospectus, and the Prospectus
and any amendments or supplements thereto does not and will not, as of
the applicable effective date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date, the date
hereof, the Closing Time and each Date of Delivery (as to any
preliminary prospectus and the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact with
respect to such Selling Shareholder or omit to state a material fact
with respect to such Selling Shareholder required to be stated therein
or necessary to make the statements regarding the Selling Shareholder
therein, in the case of any preliminary prospectus and the Prospectus,
in light of the circumstances in which they were made, not misleading.
(ii) AUTHORIZATION OF AGREEMENTS. Such Selling Shareholder has
the full right, power and authority to enter into this Agreement and
the Irrevocable Power of Attorney and Custody Agreement (the "Power of
Attorney and Custody Agreement") with Firstar Bank, N.A., as custodian
(the "Custodian"), and the attorneys-in-fact named therein (each an
"Attorney-in-Fact"), and to sell, transfer and deliver the Securities
-13-
to be sold by such Selling Shareholder hereunder. The execution and
delivery of this Agreement and the Power of Attorney and Custody
Agreement and the sale and delivery of the Securities to be sold by
such Selling Shareholder and the consummation of the transactions
contemplated herein and compliance by such Selling Shareholder with its
obligations hereunder have been duly authorized by such Selling
Shareholder and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any tax, lien, charge or encumbrance upon the Securities to be sold by
such Selling Shareholder or any property or assets of such Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which such Selling Shareholder is a party or
by which such Selling Shareholder may be bound, or to which any of the
property or assets of such Selling Shareholder is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a material adverse change in the condition
(financial or otherwise), earnings, business affairs or business
prospects of such Selling Shareholder (a "Selling Shareholder Material
Adverse Effect"), whether or not arising in the ordinary course of
business), nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instrument
of such Selling Shareholder, if applicable, or any applicable treaty,
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over such Selling Shareholder or any of its
properties which would reasonably be expected, either singly or in the
aggregate, to result in a Selling Shareholder Material Adverse Effect.
(iii) VALID TITLE. With respect to all Securities to be sold by
such Selling Shareholders (other than the Stock Option Shares), such
Selling Shareholder has on the date hereof and with respect to all
Securities to be sold by such Selling Shareholders such Selling
Shareholder will at the Closing Time and, if any Option Securities are
purchased, on the Date of Delivery have good and valid title to the
Securities to be sold by such Selling Shareholder hereunder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind, other than pursuant to this
Agreement and the Custody Agreement and Power of Attorney; and upon
delivery of such Securities and payment of the purchase price therefor
as herein contemplated, assuming each such Underwriter has no notice of
any adverse claim as such term is used in the Uniform Commercial Code
as adopted in the State of New York, each of the Underwriters will
receive good and valid title to the Securities purchased by it from
such Selling Shareholder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind.
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(iv) DUE EXECUTION OF POWER OF ATTORNEY AND CUSTODY AGREEMENT.
Such Selling Shareholder has duly executed and delivered a Power of
Attorney and Custody Agreement; the Custodian is authorized to deliver
the Securities to be sold by such Selling Shareholder hereunder and to
accept payment therefor; and each Attorney-in-Fact named in the Power
of Attorney and Custody Agreement executed by such Selling Shareholder
is authorized by such Selling Shareholder to execute and deliver this
Agreement and the certificate referred to in Section 6(e) of this
Agreement or that may be required pursuant to Section 6(k) or 6(l) of
this Agreement on behalf of such Selling Shareholder, to sell, assign
and transfer to the Underwriters the Securities to be sold by such
Selling Shareholder hereunder, to determine the purchase price to be
paid by the Underwriters to such Selling Shareholder, as provided in
Section 2(a) hereof, to authorize the delivery of the Securities to be
sold by such Selling Shareholder hereunder, to accept payment therefor,
and otherwise to act on behalf of such Selling Shareholder in
connection with this Agreement.
(v) ABSENCE OF MANIPULATION. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or that would reasonably be expected to, cause or result
in, or that has constituted, stabilization or manipulation of the price
of the Securities in violation of Regulation M under the 1934 Act.
(vi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by such Selling
Shareholder of its obligations hereunder or in the Power of Attorney
and Custody Agreement, or in connection with the offer, sale and
delivery of the Securities being sold by each such Selling Shareholder
hereunder or the consummation by such Selling Shareholder of the
transactions contemplated by this Agreement, except such as may have
previously been made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state or foreign securities laws.
(vii) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all
of the Securities (other than the Stock Option Shares) to be sold by
such Selling Shareholder pursuant to this Agreement, in suitable form
for transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed, have been
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the Underwriters pursuant to
this Agreement. Copies of the executed notices of exercise ("Notices of
Exercise") with respect to the Stock Option Shares have been provided
to the Custodian and the Representatives.
-15-
(viii) IRREVOCABLE OBLIGATIONS. The Securities represented by the
Certificates held in custody for such holder under the Custody
Agreement and the Stock Option Shares indicated in the Notices of
Exercise are subject to the interests of the Underwriters hereunder;
the arrangements made by such holder for such custody, and the
appointment by such holder of the Attorneys-in-Fact by the Power of
Attorney and Custody Agreement, are to that extent irrevocable; the
obligations of such holder hereunder shall not be terminated, except as
provided in the Agreement or in the Power of Attorney, by operation of
law, whether by the death or incapacity of any individual Selling
Shareholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such trust
estate or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of
any other event, if any individual Selling Shareholder or any such
executor or trustee should die or become incapacitated, or if any such
estate or trust should be terminated, or any such partnership or
corporation should be dissolved, or if any other event should occur,
before the delivery of the Securities hereunder, certificates
representing the Securities shall be delivered by or on behalf of such
holder in accordance with the terms and conditions of this Agreement
and of the Power of Attorney and Custody Agreement; and actions taken
by the Attorney-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the Custodian,
Attorney-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
(ix) NO ASSOCIATION WITH NASD. Neither such Selling Shareholder
nor any of its affiliates (within the meaning of NASD Conduct Rule
2720(b)(1)(a)) directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or is an associated person (within the meaning of Article
I, Section 1(ee) of the By-laws of the National Association of
Securities Dealers, Inc.), of, any member firm of the National
Association of Securities Dealers, Inc., other than as described in
schedule 6(h) to the Power of Attorney and Custody Agreement to which
such Selling Shareholder is a party.
(x) POWER AND AUTHORITY. If such Selling Shareholder is a
corporation, partnership or trust, such Selling Shareholder has been
duly organized or incorporated and is validly existing as a corporation
or partnership or limited partnership in good standing under the laws
of its jurisdiction of incorporation or organization, if applicable,
and has the power and authority to own its property and to conduct its
business and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
-16-
standing would not result in a Selling Shareholder Material Adverse
Effect, whether or not arising in the ordinary course of business, or
materially impair its ability to consummate the transactions
contemplated hereby.
(c) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its Subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of any Selling Shareholder as such or such
Selling Shareholder's Attorney-in-Fact and delivered to the Representatives or
to counsel for the Underwriters pursuant to the terms of this Agreement shall be
deemed a representation and warranty by such Selling Shareholder, as the case
may be, to the Underwriters as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder agrees to sell to each
Underwriter, severally and not jointly, to the extent indicated on Schedule A
hereto, and each Underwriter, severally and not jointly, agrees to purchase from
the Company and each Selling Shareholder, at the price per share set forth in
Schedule C, the proportion of the number of Initial Securities set forth in
Schedule B opposite the name of the Company or such Selling Shareholder, as the
case may be, which the number of Securities set forth in Schedule A opposite the
name of such Underwriter (plus any additional number of Initial Securities which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 11 hereof) bears to the total number of Initial Securities, in each
case, with such adjustments among the Underwriters as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
securities.
(b) OPTION SECURITIES. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholders, acting severally and not jointly, hereby
grant an option to the Underwriters, severally and not jointly, to purchase up
to an additional 1,125,000 shares of Common Stock, to the extent indicated on
Schedule B-1, at the price per share set forth in Schedule C, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the
Selling Shareholders setting forth the number of Option Securities as to which
the several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date of
delivery for the Option Securities
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(a "Date of Delivery") shall be determined by the Representatives, but shall not
be later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as
shall be agreed upon by the Representatives, the Company and the Selling
Shareholders, at 9:00 A.M. (New York City time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (New York City time) on any given day) business
day after the date hereof (unless postponed in accordance with the provisions of
Section 11), or such other time not later than ten business days after such date
as shall be agreed upon by the Representatives, the Company and the Selling
Shareholders or the Attorneys-in-Fact on behalf of the Selling Shareholders
(such time and date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Selling Shareholders, on each Date of Delivery as specified in the
notice from the Representatives to the Selling Shareholders.
Payment shall be made to the Company and to each Selling Shareholder by
wire transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to the Power of Attorney and Custody
Agreement, as the case may be, against delivery to the Representatives for the
respective accounts of the Underwriters of certificates for the Securities to be
purchased by them. It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Initial Securities and the Option
Securities, if any, which it has agreed to purchase.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be.
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SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company, subject to Section 3(b), will notify the
Representatives immediately, and confirm the notice in writing, (i)
when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect
the filings necessary pursuant to Rule 424(b) and will take such steps
as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. 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.
(b) FILING OF AMENDMENTS. The Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under
Rule 462(b)), or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or the Prospectus, whether pursuant to the 1933 Act, the 1934
Act or otherwise, will furnish the Representatives with copies of any
such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters
shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has
furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and, if
requested, documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates
of experts, and will also deliver to the Representatives, without
charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters.
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(d) DELIVERY OF PROSPECTUSES. The Company has delivered or
will deliver to each Underwriter and counsel for the Underwriters,
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company
will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in
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 the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements 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 any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the 1934 Act and the 1934 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) BLUE SKY QUALIFICATIONS. The Company will use its best
efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the
effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that neither the Company nor
any of the Selling Shareholders shall be obligated to file any general
consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified,
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the Company will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in effect
for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) RULE 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders 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.
(h) RESTRICTION ON TRANSFER. The Company will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell,
contract to sell, pledge or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with
the Company or any affiliate of the Company) directly or indirectly, or
file a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of
the 1934 Act with respect to, any shares of capital stock of the
Company or any securities convertible into or exercisable or
exchangeable for such capital stock, or publicly announce an intention
to effect any such transaction, for a period of 90 days after the date
of this Agreement, PROVIDED, HOWEVER, that the Company may (i) grant
options to purchase Common Stock and issue and sell Common Stock
pursuant to the terms of any Company stock option plans existing at the
Closing Time or (ii) issue Common Stock in connection with acquisitions
by the Company; provided that in the case of clause (ii) it shall be a
condition to such stock issuance that the third party receiving such
shares executes a lock-up agreement on substantially the same terms as
described above for a period expiring 90 days from the date of this
Agreement and there shall be no further transfer of such shares except
in accordance with the provisions of such lock up agreement.
(i) REPORTING REQUIREMENTS. 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
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
(j) RESTRICTION ON MANIPULATION. The Company will not take,
directly or indirectly, any action designed to, or that would
reasonably be expected to cause or result in, or that would constitute
stabilization or manipulation of the price of the Securities in
violation of Regulation M under the 1934 Act.
-21-
SECTION 4. COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling
Shareholder agrees with the several Underwriters that:
(a) RESTRICTION ON TRANSFER. Such Selling Shareholder will
not, and will not take any action to cause any affiliate of such
Selling Shareholder or any person in privity with such Selling
Shareholder or any affiliate of such Selling Shareholder to, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition) due to cash settlement or otherwise), directly or
indirectly, or participate in the filing of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the 1934 Act with respect to, any
shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for such capital stock, or publicly
announce an intention to effect any such transaction, for a period of
90 days after the date of this Agreement, other than shares of Common
Stock disposed of either (i) as bona fide gifts or (ii) as a
distribution to such Selling Shareholder's partners or shareholders,
provided that, in either case, (x) the donee(s) or such partners or
shareholders agree in writing prior to such disposition to be bound by
the restrictions set forth herein and (y) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. is
given prior written notice of such disposition.
(b) RESTRICTION ON MANIPULATION. Such Selling Shareholder will
not take, directly or indirectly, any action designed to or that would
constitute or that might reasonably be expected to cause or result in,
under the 1934 Act or otherwise, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
SECTION 5. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters, the Power of Attorney and Custody
Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Securities, (iii) the
preparation, issuance and delivery of the certificates for the Securities to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities by the
Company to the Underwriters, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in
-22-
accordance with the provisions of Section 3(f) 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 the blue sky
survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectus and
any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the blue sky survey and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the fees and expenses incurred in connection with the listing
of the Securities on the New York Stock Exchange and (x) the Company's own costs
and expenses of meetings with prospective investors and the roadshow (including
roadshow venues, and travel and accommodations) and 100% of the costs and
expenses incurred for domestic chartered air travel using the Company's
corporate aircraft in connection with the roadshow.
(b) EXPENSES OF THE SELLING SHAREHOLDERS. The Company will pay all
expenses incident to the performance of the Selling Shareholders' obligations
under, and the consummation of the transactions contemplated by, this Agreement
(other than any underwriting discount), including (i) any stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the Securities
or the Option Securities by the Selling Shareholders to the Underwriters, and
their transfer between the Underwriters pursuant to an agreement between such
Underwriters and (ii) the fees and disbursements of the Selling Shareholders'
counsel and accountants.
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 6, Section 10(a)(i)
or (ii) hereof or Section 12, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
(d) ALLOCATION OF EXPENSES. The provisions of this Section 5 shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing of such costs and expenses.
SECTION 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any Subsidiary or on behalf of the Selling Shareholders delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has been
declared effective under the 1933 Act; and at Closing Time no stop
order suspending the effectiveness of the
-23-
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of counsel to
the Underwriters. The Prospectus shall have been filed with the
Commission in accordance with Rule 424(b).
(b) OPINION OF COUNSEL FOR COMPANY AND THE SELLING
SHAREHOLDERS. At Closing Time, the Representatives shall have received
the favorable opinions, dated as of Closing Time, of (i) ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇, S.C., counsel to the Company, relating to certain matters of
Wisconsin law, (ii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
counsel to the Company, (iii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel to the Category 1 Selling Shareholders identified on
Schedule B hereto, and special counsel to the Category 2 Selling
Shareholders identified on Schedule B hereto, with respect to certain
matters of New York law, and (iv) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, S.C., counsel
to the Category 2 Selling Shareholders identified on Schedule B hereto,
in each case in form and substance reasonably satisfactory to counsel
for the Underwriters together with signed or reproduced copies of such
letter for each of the other Underwriters, dated as of the Closing
Time, to the effect set forth in Exhibits ▇-▇, ▇-▇, ▇-▇ and A-4,
respectively, hereto.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters,
in form and substance reasonably satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of
the other Underwriters. In giving such opinion such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the
law of the State of New York and the federal law of the United States
and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the Representatives. Such counsel
may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its Subsidiaries and of the Selling
Shareholders and certificates of public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Prospectus, any material adverse
change in the condition (financial or otherwise), 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 Representatives shall have received a
certificate of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company, dated
as of Closing Time, to the effect that (i) there has been no such
material
-24-
adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(e) SELLING SHAREHOLDERS' CERTIFICATE. At Closing Time, the
Representatives shall have received a certificate of each Selling
Shareholder (which may be executed on behalf of each Selling
Shareholder by the general partner or a duly authorized executive
officer of such Selling Shareholder or by such Selling Shareholder's
Attorney-in-Fact), dated as of Closing Time, to the effect that (i) the
representations and warranties of such Selling Shareholder contained in
Section 1(b) hereof are true and correct with the same force and effect
as though expressly made at and as of the Closing Time and (ii) such
Selling Shareholder has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under this
Agreement at or prior to the Closing Time.
(f) ACCOUNTANT'S COMFORT LETTERS. At the time of the execution
of this Agreement, the Representatives shall have received from KPMG
LLP a letter dated such date, in form and substance reasonably
satisfactory to the Representatives, together with signed or reproduced
copies of such letter for each of the other Underwriters containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(g) BRING-DOWN COMFORT LETTERS. At Closing Time, the
Representatives shall have received a letter from KPMG LLP, dated as of
Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (f) of this Section, except
that the specified date referred to shall be a date not more than three
business days prior to Closing Time.
(h) APPROVAL FOR LISTING. The Securities shall have been
listed and admitted and authorized for trading on the New York Stock
Exchange, and satisfactory evidence of such actions shall have been
provided to the Representatives.
(i) LOCK-UP AGREEMENTS At the date of this Agreement, the
Representatives shall have received an agreement substantially in the
form of Exhibit B hereto signed by the persons listed on Schedule D
hereto.
-25-
(j) CUSTODY AGREEMENT. At the date of this Agreement the
Representatives shall have received copies of the Power of Attorney and
Custody Agreement executed by each of the Selling Shareholders.
(k) CONDITIONS TO PURCHASE OF OPTION SECURITIES. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any
Subsidiary of the Company hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the
Representatives shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such
Date of Delivery, of the President or a Vice President of the
Company and of the chief financial or chief accounting officer
of the Company confirming that the certificate delivered at
the Closing Time pursuant to Section 6(d) hereof remains true
and correct as of such Date of Delivery.
(ii) SELLING SHAREHOLDER'S CERTIFICATE. At the Date of
Delivery, the Representatives shall have received a
certificate of each Selling Shareholder (which may be executed
on behalf of each Selling Shareholder by the general partner
or a duly authorized executive officer of such Selling
Shareholder or such Selling Shareholder's Attorney-in-Fact),
dated as of Date of Delivery, to the effect that (x) the
representations and warranties of such Selling Shareholder
contained in Section 1(b) hereof, are true and correct with
the same force and effect as though expressly made at and as
of Date of Delivery and (y) such Selling Shareholder has
complied with all agreements and satisfied all conditions on
their part to be performed or satisfied under this Agreement
at or prior to Date of Delivery.
(iii) OPINION OF COUNSEL FOR COMPANY AND THE SELLING
SHAREHOLDERS. The favorable opinion of (w) ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇, S.C., counsel to the Company, relating to certain
matters of Wisconsin law, (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel to the Company, (y) Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Category 1
Selling Shareholders identified on Schedule B hereto and
special counsel to the Category 2 Selling Shareholders
identified on Schedule B hereto with respect to certain
matters of New York law, and (z) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, S.C.,
counsel to the Category 2 Selling Shareholders identified on
Schedule B hereto, in each case in form and substance
reasonably satisfactory to counsel for the Underwriters
together with signed or reproduced copies of such letter for
each of the other Underwriters, dated such Date of Delivery,
relating to the Option Securities
-26-
to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 6(b).
(iv) OPINION OF COUNSEL FOR UNDERWRITERS. The
favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by
Section 6(c) hereof.
(v) BRING-DOWN COMFORT LETTERS. A letter from KPMG
LLP, in form and substance reasonably satisfactory to the
Representatives and dated such Date of Delivery, substantially
in the same form and substance as the letter furnished to the
Representatives pursuant to Section 6(g) hereof, except that
the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to
such Date of Delivery.
(l) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company and the Selling Shareholders in connection with the issuance
and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and counsel
for the Underwriters.
(m) TERMINATION OF AGREEMENT. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 5 and except that Sections 1, 7, 8 and 9
shall survive any such termination and remain in full force and effect.
SECTION 7. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS BY THE COMPANY. The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of
-27-
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the indemnifying party; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not (i) apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto), any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) as specified in Section
7(c) hereof, or (ii) inure to the benefit of any Underwriter from whom the
person asserting any loss, liability, claim, damage or expense, purchased
Securities, or any person controlling such Underwriter if it shall be
established that a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person if required
-28-
by law to have been so delivered, at or prior to the confirmation of the sale of
such Securities to such person in any case where, the Company complied with its
obligations under Sections 3(a), 3(b) and 3(d) and if the Prospectus, (as so
amended or supplemented) would have cured any defect giving rise to such loss,
liability, claim, damage or expense.
(b) INDEMNIFICATION OF UNDERWRITERS BY THE SELLING SHAREHOLDERS. Each
Selling Shareholder, severally and not jointly, agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in the preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 7(d) below) any such settlement is effected
with the written consent of the indemnifying party; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not (i) apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information
-29-
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto), the
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) as specified in Section 7(c) hereof; or (ii) inure to the benefit of
any Underwriter from whom the person asserting any loss, liability, claim,
damage or expense, purchased Securities, or any person controlling such
Underwriter if it shall be established that a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person if required by law to have been so delivered, at or prior to the
confirmation of the sale of such Securities to such person in any case where the
Company complied with its obligations under Sections 3(a), 3(b) and 3(d), and if
the Prospectus (as so amended or supplemented) would have cured any defect
giving rise to such loss, liability, claim, damage or expense; PROVIDED,
FURTHER, HOWEVER, that with respect to each Selling Shareholder, (x) the
indemnification provision in this paragraph (b) shall only apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission, or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by such
Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto), any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) and (y) such Selling Shareholder's aggregate
liability under this paragraph (b) shall be limited to an amount equal to the
net proceeds (after deducting the underwriting discount but before deducting
expenses) received by such Selling Shareholder from the sale of Securities
pursuant to this Agreement.
(c) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS AND SELLING
SHAREHOLDERS. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Selling
Shareholder and each person, if any, who controls any Selling Shareholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in paragraphs (a) and (b) of this Section 7, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto). The
Company acknowledges that the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities and, under the heading
"Underwriting" or "Plan of Distribution", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate
-30-
covering transactions and penalty bids in any preliminary prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in any preliminary prospectus or the
Prospectus.
(d) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a) and
Section 7(b) above, counsel to the indemnified parties shall be selected by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney, and, in the case of parties indemnified pursuant to
Section 7(c) above, counsel to the indemnified parties shall be selected by the
Company or the indemnified Selling Shareholder, as appropriate. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any necessary local counsel) separate from
their own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel for which the indemnifying
party is responsible pursuant to the terms hereof, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a)(ii) or Section 7(b)(ii) effected without its written consent if (i)
such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 45 days prior to
such settlement being entered into and
-31-
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The provisions of
this Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
SECTION 8. CONTRIBUTION. If, although applicable in accordance with its
terms, the indemnification provided for in Section 7 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders, on the
one hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders,
on the one hand, and of the Underwriters, on the other hand, in connection with
the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholders and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, bear to the aggregate initial public offering price
of the Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders, on the
one hand, and the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any
-32-
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 8. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, (a) each person, if any, who controls
an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, (b)
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company and (c) each person, if any,
who controls any Selling Shareholder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Selling Shareholder. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
Notwithstanding the provisions of this Section 8, no Selling
Shareholder shall be required to contribute any amount in excess of the amount
equal to the net proceeds (after deducting the underwriting discount but before
deducting expenses) received by such Selling Shareholder from the sale of
Securities pursuant to this Agreement.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
Subsidiaries or the Selling Shareholders submitted pursuant
-33-
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company or any Selling Shareholder, and shall survive
delivery of the Securities to the Underwriters.
SECTION 10. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representatives may terminate this
Agreement, in their absolute discretion, by notice to the Company and the
Attorneys-in-Fact on behalf of the Selling Shareholders, at any time at or prior
to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in 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 there shall have occurred
a downgrading in the rating assigned to any of the Company's debt securities by
any nationally recognized securities rating agency, or if such securities rating
agency shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's debt
securities, or (iii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, or (iv) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (v) if a banking moratorium has been declared by either Federal or
New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 5 hereof, and provided further that Sections
1, 7, 8 and 9 shall survive such termination and remain in full force and
effect.
SECTION 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at the Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"),
-34-
the Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Selling Shareholders to sell the relevant
Option Securities, either (i) the Representatives or (ii) the Company and the
Selling Shareholders shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for a Underwriter under this
Section 11.
SECTION 12. DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS OR
THE COMPANY
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, then the
Underwriters may, at the option of the Representatives, by notice from the
Representatives to the Company and the non-defaulting Selling Shareholders,
either (i) terminate this Agreement without any liability on the part of any
non-defaulting party except that the provisions of Sections 1, 5, 7, 8 and 9
shall remain in full force and effect, (ii) elect to purchase the Securities
which the non-defaulting Selling Shareholders and the Company have agreed to
sell hereunder or (iii) elect to purchase the number of
-35-
Securities contemplated by this Agreement as if there had not been a default by
such Selling Shareholder or Selling Shareholders, so long as the Company and/or
the non-defaulting Selling Shareholders increase the number of Securities to be
sold by it or them not later than 24 hours prior to Closing Time by an amount
equal to the aggregate number of Securities which such Selling Shareholder or
Selling Shareholders have failed to sell and deliver (the "Defaulted
Securities"); PROVIDED HOWEVER, that in the event the number of Defaulted
Securities is equal to or less than 10% of the number of Securities to be sold
by all Selling Shareholders, the Underwriters may not terminate this Agreement
in accordance with clause (i) above so long as the non-defaulting Selling
Shareholders increase the number of Securities to be sold by them by an amount
equal to the Defaulted Securities. No action taken pursuant to this Section 12
shall relieve any Selling Shareholder so defaulting from liability, if any, in
respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 12, the Representatives shall have the right to postpone Closing
Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in any
other documents or arrangements.
(b) If the Company shall fail at Closing Time or at the Date of
Delivery to sell the number of Securities that it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any non-defaulting party; provided, however, that the provisions of Sections
1, 5, 7, 8 and 9 shall remain in full force and effect. No action taken pursuant
to this Section shall relieve the Company from liability, if any, in respect of
such default.
SECTION 13. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of General Counsel, with a copy to ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇, Esq.; notices to the Company shall be directed to it at
Rayovac Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., with a copy to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; notices to the
Selling Shareholders shall be delivered to them at the address for notices
indicated in the Power of Attorney and Custody Agreement.
SECTION 14. PARTIES. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters, the Company and the Selling Shareholders
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 Underwriters, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers
-36-
and directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim 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 the Underwriters, the Company and the Selling Shareholders
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 from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH
PRINCIPLES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION). SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME. AS USED
HEREIN, THE TERM "BUSINESS DAY" MEANS ANY DAY ON WHICH THE NEW YORK STOCK
EXCHANGE AND COMMERCIAL BANKS IN NEW YORK CITY ARE REGULARLY OPEN FOR BUSINESS.`
SECTION 16. EFFECT OF HEADINGS. The Section headings herein and the
Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, when a counterpart has been executed by each party hereto, all
such counterparts taken together shall constitute one and the same agreement.
The Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorneys-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
RAYOVAC CORPORATION
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board, Chief
Executive Officer and President
SELLING SHAREHOLDERS LISTED IN
CATEGORY 1 ON SCHEDULE B HERETO
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III, as General Partner
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND III, L.P.
By: THL Equity Advisors III Limited
Partnership, as General Partner
By: THL Equity Trust III,
as General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇. ▇▇▇ INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp.,
as General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SELLING SHAREHOLDERS LISTED IN
CATEGORY 2 ON SCHEDULE B HERETO
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact, on behalf of the
Selling Shareholders listed in
Category 2 on Schedule B hereto
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified above:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
UBS WARBURG LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
For themselves and as Representatives
of the other Underwriters named in
Schedule A hereto.
SCHEDULE A
NUMBER OF
INITIAL
NAME OF UNDERWRITER SECURITIES
------------------- ----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc........................................ 1,650,000
Credit Suisse First Boston Corporation.......................... 1,650,000
▇▇▇▇▇▇ Brothers Inc............................................. 1,650,000
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated............... 1,650,000
UBS Warburg LLC................................................. 900,000
=========
7,500,000
=========
SCHEDULE B
INITIAL
SELLING SHAREHOLDER SECURITIES
CATEGORY 1
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, L.P. 2,842,641
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund III, L.P. 176,094
▇▇▇▇▇▇ ▇. ▇▇▇ Investors Limited Partnership 298,449
---------
Total Category 1 3,317,184
CATEGORY 2
▇▇▇▇▇ ▇. ▇▇▇▇▇ 246,318
▇▇▇▇ ▇. ▇▇▇▇▇▇ 100,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 65,722
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 60,402
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 10,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 73,992
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 466
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3,090
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 7,500
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 500
▇▇▇▇▇▇ ▇. ▇▇▇▇ 537
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 36,364
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,820
▇▇▇▇▇▇ ▇. ▇▇▇▇ 8,342
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 5,818
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 425
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,683
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 5,367
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,074
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Living Trust 1,481
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,270
▇▇▇▇▇ ▇▇▇▇▇▇ 698
▇▇▇▇▇▇▇ f/b/o Brenton Kindle 4,280
▇▇▇▇▇▇▇ f/b/o ▇▇▇▇▇▇ Kindle 4,280
▇▇▇▇▇▇▇ f/b/o ▇▇▇▇ ▇▇▇▇▇▇▇ 4,280
Dworksy f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ 4,280
Dworksy f/b/o ▇▇▇▇▇▇ ▇▇▇▇▇ 4,280
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,127
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ f/b/o ▇▇▇▇ ▇▇▇▇▇▇ 1,431
▇▇▇▇▇ ▇▇▇▇▇ f/b/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,431
▇▇▇▇ ▇▇▇▇▇ 1,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 778
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,000
▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,335
Klagos as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ as custodian for ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ as custodian for ▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ as custodian for ▇▇▇▇ ▇▇▇▇▇▇ 70
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,250
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 642
Pauritsch f/b/▇ ▇▇▇▇▇▇ 231
Pauritsch f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 231
▇▇▇▇▇ ▇. ▇▇▇ 3,220
▇▇▇▇ ▇▇▇▇▇▇ 303
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,697
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇ 99
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 99
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇ 99
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,296
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 656
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ 545
---------
Total Category 2 682,816
Total of Category 1 and Category 2 4,000,000
=========
SCHEDULE B-1
OPTION
OVER ALLOTMENT SELLING SHAREHOLDER SECURITIES
CATEGORY 1
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, L.P. 735,679
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund III, L.P. 45,574
▇▇▇▇▇▇ ▇. ▇▇▇ Investors Limited Partnership 77,239
--------
Total Category 1 858,492
CATEGORY 2
▇▇▇▇▇ ▇. ▇▇▇▇▇ 189,872
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 9,436
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 8,298
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 11,938
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 119
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 710
▇▇▇▇▇▇ ▇. ▇▇▇▇ 48
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 3,636
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 960
▇▇▇▇▇▇ ▇. ▇▇▇▇ 1,915
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 31,230
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 241
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 480
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 185
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Living Trust 457
▇▇▇▇▇ ▇▇▇▇▇▇▇ 385
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ f/b/o ▇▇▇▇ ▇▇▇▇▇▇ 197
▇▇▇▇▇ ▇▇▇▇▇ f/b/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ 197
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 241
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 120
Pauritsch f/b/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,238
Pauritsch f/b/o for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,238
▇▇▇▇▇ ▇. ▇▇▇ 288
▇▇▇▇ ▇▇▇▇▇▇ 72
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 406
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇ 23
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 23
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇ 23
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 355
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 144
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,597
▇▇▇▇▇▇ ▇. ▇▇▇▇ 169
---------
Total Category 2 266,508
Total of Category 1 and Category 2 1,125,000
=========
SCHEDULE C
Rayovac Corporation
7,500,000 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The public offering price per share for the Securities, determined
as provided in said Section 2, shall be $19.50.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $18.575, being an amount equal to the public
offering price set forth above less $.925 per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.
SCHEDULE D
List of Persons and Entities Subject to Lock-up
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund III, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ Investors Limited Partnership
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Living Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ f/b/▇ ▇▇▇▇▇▇▇ Kindle
▇▇▇▇▇▇▇ f/b/o Brooke Kindle
▇▇▇▇▇▇▇ f/b/o ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ f/b/o ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ f/b/o ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ f/b/o ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇
Klagos as custodian for ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ as custodian for ▇▇▇ ▇▇▇▇▇▇
Klagos as custodian for ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Pauritsch f/b/o ▇▇▇▇▇▇ ▇▇▇▇▇▇
Pauritsch f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as custodian for ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
SCHEDULE E
Subsidiaries of the Company
Minera Vidaluz S.A. de C. V., a Mexico corporation ROV Holding, Inc., a Delaware
corporation Rayovac Foreign Sales Corporation, a Barbados corporation Rovcal,
Inc., a California corporation Rayovac (UK) Limited, a United Kingdom
corporation Rayovac Europe Limited, a United Kingdom corporation Rayovac Canada,
Inc., a Canada corporation Rayovac Far East Limited, a Hong Kong corporation
Zoephos International N.V., a Netherlands Antilles corporation Rayovac Europe,
B.V., a Netherlands corporation ▇▇▇▇▇▇ Electronics, B. V., a Netherlands
corporation ▇▇▇▇▇▇ Electronics GmbH, a German corporation Rayovac Latin America,
Limited, a Cayman Islands corporation Rayovac Argentina S.R.L., a Argentina
company Rayovac Chile Ltda., a Chile company Rayovac Overseas Corporation, a
Panama corporation Rayovac Venezuela, S.A., a Venezuela corporation
Distribuidora Rayovac Guatemala, S.A., a Guatemala corporation Rayovac
Guatemala, S.A., a Guatemala corporation Rayovac El Salvador, S.A. de C.V., a El
Salvador corporation Ray-O-Vac de Mexico, S.A. de C.V., a Mexico corporation
Rayovac Costa Rica, S.A., a Costa Rica corporation Rayovac Honduras, S.A., a
Honduras corporation Distribuidora Rayovac Honduras, S.A., a Honduras
corporation
Rayovac Dominican Republic, S.A., a Dominican Republic corporation
Rayovac Colombia, S.A., a Colombia corporation
C-2-1
EXHIBIT B
FORM OF LOCK-UP AGREEMENT
____________, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
UBS Warburg LLC
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: PROPOSED PUBLIC OFFERING BY RAYOVAC CORPORATION
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Purchase Agreement (the "Purchase Agreement") between Rayovac
Corporation, a Wisconsin corporation (the "Company"), and each of you as
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of common stock, $.01 par value per share (the
"Common Stock") of the Company.
In order to induce you and the other Underwriters to enter into the
Purchase Agreement, the undersigned will not, and will not take any actions to
cause any affiliate of the undersigned or any person in privity with the
undersigned or any affiliate of the undersigned to, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise)), directly or indirectly, including the filing or participation in
the filing of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities Exchange Act of 1934, as amended, any shares of capital
stock of the Company or any securities convertible into or exercisable or
exchangeable for such capital stock, or publicly announce an intention to effect
any such transaction, for a period of 90 days after the date of the Purchase
Agreement, other
-2-
than shares of Common Stock disposed of either (i) as bona fide gifts or (ii) as
a distribution to your partners or shareholders, provided that, in either case,
(x) the donee(s) or such partners or shareholders agree in writing prior to such
disposition to be bound by the restrictions set forth herein and (y) that
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. is given prior written notice of such disposition.
If for any reason the Purchase Agreement shall be terminated prior to
the Closing Date (as defined in the Purchase Agreement), the agreement set forth
above shall likewise be terminated.
Very truly yours,
Signature:
--------------------------
Print Name:
-------------------------