EXHIBIT 1.2
February 7, 2003
THE TIMKEN COMPANY
(an Ohio corporation)
$[ ],000,000 [ ]% Notes due 20[ ]
PURCHASE AGREEMENT
Dated: February , 2003
Table of Contents
PURCHASE AGREEMENT
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................ 5
(vi) Good Standing of the Company.......................... 5
(vii) Good Standing of Subsidiaries......................... 6
(viii) Good Standing of Torrington........................... 6
(ix) Capitalization of the Company......................... 6
(x) Authorization of Agreement............................ 7
(xi) Authorization of the Indenture........................ 7
(xii) Acquisition Agreement................................. 7
(xiii) Authorization and Description of Securities........... 7
(xiv) Description of the Securities and the Indenture....... 8
(xv) Absence of Defaults and Conflicts..................... 8
(xvi) Distributions and Dividend Payments................... 9
(xvii) Internal Controls..................................... 9
(xviii) Absence of Labor Dispute.............................. 9
(xix) Absence of Proceedings................................ 9
(xx) Possession of Intellectual Property................... 10
(xxi) Absence of Further Requirements....................... 10
(xxii) Possession of Licenses and Permits.................... 10
(xxiii) Title to Property................................... 11
(xxiv) Investment Company Act................................ 11
(xxv) Registration Rights................................... 11
(xxvi) Environmental Laws.................................... 11
(b) Officer's Certificates........................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing....................... 12
(a) Securities....................................................... 12
(b) Payment.......................................................... 12
(c) Denominations; Registration...................................... 13
SECTION 3. Covenants of the Company......................................... 13
(a) Compliance with Securities Regulations and Commission Requests... 13
(b) Filing of Amendments............................................. 13
(c) Delivery of Registration Statements.............................. 14
(d) Delivery of Prospectuses......................................... 14
(e) Continued Compliance with Securities Laws........................ 14
(f) Blue Sky Qualifications.......................................... 15
(g) Rule 158......................................................... 15
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(h) Use of Proceeds.................................................. 15
(i) Rating of Securities............................................. 15
(j) DTC.............................................................. 15
(k) Restriction on Sale of Securities................................ 15
(l) Reporting Requirements........................................... 16
SECTION 4. Payment of Expenses.............................................. 16
(a) Expenses......................................................... 16
(b) Termination of Agreement......................................... 16
SECTION 5. Conditions of Underwriters' Obligations.......................... 16
(a) Effectiveness of Registration Statement.......................... 16
(b) Opinion of Counsel for Company................................... 17
(c) Opinion of the General Counsel of the Company.................... 17
(d) Opinion of Counsel for Underwriters.............................. 17
(e) Officers' Certificate............................................ 17
(f) Accountants' Comfort Letter...................................... 17
(g) Bring-down Comfort Letter........................................ 18
(h) Consummation of the Torrington Acquisition....................... 18
(i) Consummation of the Concurrent Common Stock Offering............. 18
(j) Maintenance of Rating............................................ 18
(k) Necessary Amendments............................................. 18
(l) Additional Documents............................................. 18
(m) Termination of Agreement......................................... 19
SECTION 6. Indemnification.................................................. 19
(a) Indemnification of Underwriters.................................. 19
(b) Indemnification of Company, Directors and Officers............... 20
(c) Actions Against Parties; Notification............................ 20
(d) Settlement without Consent if Failure to Reimburse............... 21
SECTION 7. Contribution..................................................... 21
SECTION 8. Representations, Warranties and Agreements to Survive Delivery... 22
SECTION 9. Termination of Agreement......................................... 23
(a) Termination; General............................................. 23
(b) Liabilities...................................................... 23
SECTION 10. Default by One or More of the Underwriters...................... 23
SECTION 11. Parties......................................................... 24
SECTION 12. GOVERNING LAW AND TIME.......................................... 24
SECTION 13. Effect of Headings.............................................. 24
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SCHEDULES
Schedule A - List of Underwriters.......................... Sch A-1
Schedule B - Pricing Information........................... Sch B-1
Schedule C - List of Subsidiaries.......................... Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel........... A-1
Exhibit B - Form of Opinion of Company's In House Counsel... B-1
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THE TIMKEN COMPANY
(an Ohio corporation)
$[ ],000,000 [ ]% Notes due 20[ ]
PURCHASE AGREEMENT
February , ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
as Representatives of the several Underwriters
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Timken Company, an Ohio corporation (the "Company"), confirms its
agreement with the Representatives (as defined below) 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 10 hereof), for whom Banc of America Securities LLC ("BAS"), ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") are acting as
representatives (in such capacity, the "Representatives"), with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective principal amounts set forth in said
Schedule A of $[ ],000,000 aggregate principal amount of the Company's [ ]%
Notes due 20[ ] (the "Securities"). The Securities are to be issued pursuant to
an indenture to be dated as of the Closing Time (as defined in Section 2(b))
(the "Indenture") between the Company and The Bank of New York, as trustee (the
"Trustee"). The term "Indenture", as used herein, includes the Officer's
Certificate (as defined in the Indenture) establishing the form and terms of the
Securities pursuant to Sections 2.01 and 2.02 of the Indenture. Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The
Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated
February 14, 2003 (the "DTC Agreement"), between the Company and DTC.
The Company understands 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 shelf registration statement on Form S-3 (No. 333-100731)
covering the registration of the Securities under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses relating to the Securities. Promptly after execution and delivery
of this Agreement, the Company will prepare and file a prospectus in accordance
with the provisions of Rule 430A ("Rule 430A") of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. The information
included in such prospectus that was omitted from such registration statement at
the time it became effective but that is deemed to be part of such registration
statement at the time it became effective pursuant to paragraph (b) of Rule 430A
is referred to as "Rule 430A Information." Each prospectus, which term shall
include both the base prospectus and any prospectus supplement relating to the
Securities included in such registration statement, used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated or deemed incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time it became effective, and including the Rule 430A Information, 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 be deemed to include the Rule 462(b) Registration Statement.
The final prospectus, including both the base prospectus and any prospectus
supplement relating to the Securities included in the Registration Statement and
the documents incorporated or deemed incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is herein
called the "Prospectus." For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to refer to and
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
The Company has entered into a stock and asset purchase agreement dated as
of October 16, 2002 (the "Acquisition Agreement") with ▇▇▇▇▇▇▇▇▇-▇▇▇▇ Company
Limited ("IR") on behalf of itself and other sellers party thereto
(collectively, the "Acquisition Parties"), to acquire either directly or
indirectly (i) all or a portion of the outstanding shares of capital stock, as
set forth in the Acquisition Agreement, of the companies listed on Schedule B of
the Acquisition Agreement (the "Acquisition Subsidiaries"), (ii) all or a
portion of the equity interests, as set forth in the Acquisition Agreement, of
the companies listed on Schedule C of the Acquisition Agreement (the "Venture
Entities") and (iii) those assets listed in Schedule E of the Acquisition
Agreement (the "Separate Assets"). The Acquisition Subsidiaries, the Venture
Entities and the Separate Assets are hereinafter referred to collectively as
"Torrington," and the purchase of Torrington by the Company as contemplated in
the Acquisition Agreement is hereafter referred to as the "Torrington
Acquisition." The Company proposes to issue and sell the Securities in
connection with the financing of the Torrington Acquisition.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any
2
preliminary prospectus relating to the Securities or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement, any preliminary
prospectus relating to the Securities 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 relating to the Securities or
the Prospectus shall be deemed to mean and include the filing of any document
under the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated
by reference in the Registration Statement, such preliminary prospectus relating
to the Securities or the Prospectus, as the case may be.
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(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 is in effect 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 time the Registration Statement became effective, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and as of the date hereof and the Closing Time, the
Registration Statement, the 462(b) Registration Statement and any
amendments or supplements thereto and the Prospectus complied and will
comply in all material respects with the provisions of the 1939 Act and
the rules and regulations of the Commission thereunder (the "1939 Act
Regulations").
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, 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
any 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 such amendment or supplement
was issued and at the Closing Time, included or will include any untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to (i)
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the
3
Representatives expressly for use in the Registration Statement or (ii)
Prospectus or the Trustee's Statement of Eligibility on Form T-1 (the
"Form T-1").
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, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus relating to the Securities and the Prospectus
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T under the 1933 Act ("Regulation S-T").
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, 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"), as applicable, 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, 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. (A) Ernst & Young LLP, the
accountants who certified the financial statements and supporting
schedules of the Company included in the Registration Statement, are
independent public accountants with respect to the Company within the
meaning of the 1933 Act and the 1933 Act Regulations. (B)
PricewaterhouseCoopers LLP, the accountants who certified the financial
statements and supporting schedules of Torrington which were included in
the Registration Statement and used in the preparation of the pro forma
financial information set forth in the Registration Statement, are
independent public accountants with respect to Torrington within the
meaning of the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements for each of the
Company and Torrington included in the Registration Statement and the
Prospectus, together with the related schedule and notes thereto, present
fairly, in all material respects, the financial position of each of the
Company and Torrington and their respective consolidated subsidiaries at
the dates indicated and the statement of operations, stockholders' equity
and cash flows of each of the Company and Torrington and their respective
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 subject, in the case of the unaudited interim
financial statements, to normal year-end adjustments that have not been
made and are not expected to be material in amount. The supporting
schedule included in the Registration Statement presents fairly, in all
material respects, in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly, in all material
4
respects, in accordance with GAAP the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included or incorporated by reference in the Registration
Statement, except that with respect to the presentation of EBITDA as
disclosed therein, such measure is not presented in accordance with GAAP.
The pro forma financial statements and the related notes thereto included
in the Registration Statement and the Prospectus present fairly, in all
material respects, the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (B) there has been, to the Company's knowledge, no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of Torrington,
whether or not arising in the ordinary course of business, (C) there have
been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business or in
connection with the Torrington Acquisition which are material with respect
to the Company and its subsidiaries, taken as a whole, (D) there have
been, to the Company's knowledge, no transactions entered into by
Torrington other than those in the ordinary course of business or in
connection with the Torrington Acquisition which are material with respect
to Torrington, and (E) except for regular quarterly dividends on the
common stock, without par value, of the Company (the "Common Stock") in
amounts per share that are consistent with past practice, there has been
no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Ohio 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. As used in this Agreement, the term
"Material Adverse Effect" means (1) when used in respect of any matter
relating to the Company or any of its subsidiaries, 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, taken as a whole, whether or not arising in the ordinary
course of business and (2) when used in respect of any matter relating to
any of the Acquisition Subsidiaries, the Venture Entities or the Separate
Assets, any material adverse change in the condition, financial or
otherwise, or in the earnings, business
5
affairs or business prospects of Torrington, whether or not arising in the
ordinary course of business.
(vii) Good Standing of Subsidiaries. Each subsidiary of the Company
that is material to the business, financial condition or results of
operations of the Company, taken as a whole, (A) is set forth on Schedule
C hereto, (each a "Subsidiary" and, collectively, the "Subsidiaries"), (B)
has been duly organized and is validly existing and, where applicable, is
in good standing under the laws of the jurisdiction of its incorporation,
formation or organization, as applicable, and has the requisite corporate
or similar power, as the case may be, and authority to own, lease and
operate its assets and properties and to conduct its business as it is now
being conducted and as described in the Prospectus; and (C) is duly
qualified or licensed to transact business and is, where applicable, in
good standing in each other jurisdiction in which such qualification or
license 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 Registration Statement, all
of the issued and outstanding capital stock of each such Subsidiary has
been duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; 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 (a) the Subsidiaries listed on Schedule C hereto and (b)
certain other subsidiaries which, considered in the aggregate as a single
subsidiary, are not material to the business, financial condition or
results of operations of the Company, taken as a whole.
(viii) Good Standing of Torrington. To the Company's knowledge, each
of the Acquisition Subsidiaries and the Venture Entities (A) has been duly
incorporated, formed or organized and is validly existing and, where
applicable, is in good standing under the laws of the jurisdiction of its
incorporation, formation or organization, as applicable, and has the
requisite corporate or similar power, as the case may be, and authority to
own, lease and operate its assets and properties and to conduct its
business as it is now being conducted and as described in the Prospectus;
and (B) is duly qualified or licensed to transact business and is, where
applicable, in good standing in each other jurisdiction in which such
qualification or license 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.
(ix) Capitalization of the Company. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus
in the column entitled "Actual" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement, the
Acquisition Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus). The
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of
6
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(x) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xi) Authorization of the Indenture. The Indenture has been duly
qualified under the 1939 Act. The Indenture has been duly authorized by
the Company and, when executed and delivered by the Company and the
Trustee, assuming due authorization by the Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability thereof
may be limited by (i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally and (ii) general equitable
principles, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(xii) Acquisition Agreement. The Company has delivered to the
Representatives a true and correct copy of the Acquisition Agreement,
together with all related agreements and all schedules and exhibits
thereto and all letter agreements thereto, and there have been no
amendments, alterations, modifications or waivers of any of the provisions
of the Acquisition Agreement, other than as described in the Registration
Statement, since the form in which it has been delivered to the
Representatives. The Acquisition Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms except as the enforceability thereof may be limited by (i)
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and (ii) general equitable principles, regardless of
whether such enforceability is considered in a proceeding in equity or at
law, and conforms to the descriptions thereof contained in the Prospectus.
The Company is not aware of any event or condition that could reasonably
be expected to materially and adversely affect the ability of any of the
Acquisition Parties to consummate the Torrington Acquisition.
(xiii) Authorization and Description of Securities. The Securities
have been duly authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, at the Closing Time, will have been duly
executed by the Company and, when authenticated by the Trustee, issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will be valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
the enforceability thereof may be limited by (i) applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and (ii) general
equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
7
(xiv) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Prospectus and
will be in substantially the respective forms filed as exhibits to the
Registration Statement.
(xv) Absence of Defaults and Conflicts. None of the Company, its
Subsidiaries, or, to the Company's knowledge, the Acquisition Subsidiaries
or the Venture Entities is in violation of its charter or by-laws or
similar charter document. None of the Company or its Subsidiaries is 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 agreement or
instrument to which the Company or 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 its Subsidiaries is subject (collectively, "Company
Agreements and Instruments"), except for such defaults that would not
result in a Material Adverse Effect. To the Company's knowledge, none of
the Acquisition Subsidiaries or the Venture Entities is 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 agreement or instrument
known to the Company to which the Acquisition Subsidiaries or the Venture
Entities is a party or by which any of them may be bound, or to which any
of the property or assets of the Acquisition Subsidiaries or the Venture
Entities is subject (collectively, "Torrington Agreements and
Instruments;" and together with the Company Agreements and Instruments,
the "Agreements and Instruments"), except for such defaults that would not
be reasonably likely to result in a Material Adverse Effect. The
execution, delivery and performance of this Agreement, the Indenture and
the Securities and the consummation of the transactions contemplated
herein, in the Acquisition Agreement and in the Registration Statement
(including, without limitation, the concurrent offering of Common Stock by
the Company and the consummation of the other financing transactions in
connection with the Torrington Acquisition as described in the Prospectus,
the issuance and sale of the Securities and the use of the proceeds from
the sale of the Securities as described in the Prospectus under the
caption "Use of Proceeds") and compliance by the Company with its
obligations hereunder and under the Indenture and the Securities 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 of the respective property or assets of the
Company, its subsidiaries, or, to the Company's knowledge, the Acquisition
Subsidiaries or the Venture Entities pursuant to the Agreements and
Instruments (except for such conflicts, breaches, Repayment Events or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
(A) the provisions of the charter or by-laws or similar charter document
of the Company, or its Subsidiaries, or, to the Company's knowledge, the
Acquisition Subsidiaries or the Venture Entities or (B) 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 its subsidiaries, or, to the
Company's knowledge, the Acquisition Subsidiaries or the Venture Entities
or any of
8
their respective assets, properties or operations (except with respect to
clause (B) above, as would not result in a Material Adverse Effect). 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, its subsidiaries, the Acquisition
Subsidiaries or the Venture Entities, as the case may be.
(xvi) Distributions and Dividend Payments. Except as described in or
contemplated by the Registration Statement and the Prospectus and except
as prohibited by local law in circumstances that would not, individually
or in the aggregate, result in a Material Adverse Effect, (A) no
Subsidiary of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock or other equity interests,
as applicable, from repaying to the Company any loans or advances to such
Subsidiary from the Company, or from transferring any of such Subsidiary's
property or assets to the Company or any other Subsidiary of the Company
and (B) to the Company's knowledge, none of the Acquisition Subsidiaries
or the Venture Entities will, upon consummation of the Torrington
Acquisition, be prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on its
capital stock or equity interests, from repaying to the Company any loans
or advances from the Company to it, or from transferring any of its
property or assets to the Company or any other subsidiary of the Company.
(xvii) Internal Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or
specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4)
the recorded accountability for assets is compensated with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xviii) Absence of Labor Dispute. No labor dispute with the
employees of the Company, any of its subsidiaries or, to the knowledge of
the Company, Torrington 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 its subsidiaries' principal
suppliers, manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(xix) Absence of Proceedings. There are no legal or governmental
proceedings pending or, to the Company's knowledge, threatened to which
the Company or any of its Subsidiaries, or, to the Company's knowledge,
the Acquisition Subsidiaries or the Venture Entities is subject, or to
which any of the properties of the Company or any of its Subsidiaries, or,
to the Company's knowledge, the Acquisition Subsidiaries or the Venture
Entities is subject, that are required to be described in the Registration
Statement or the Prospectus and are not so described or any statutes,
regulations, contracts or other
9
documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration
Statement that are not described or filed as required.
(xx) Possession of Intellectual Property. Each of the Company, its
Subsidiaries, and, to the Company's knowledge, the Acquisition
Subsidiaries and the Venture Entities own or possess, or can acquire on
reasonable terms, adequate patents, rights to use patents, 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, except where the failure to
own or possess such Intellectual Property would not result, singly or in
the aggregate, in a Material Adverse Effect, and none of the Company, its
Subsidiaries and, to the Company's knowledge, the Acquisition Subsidiaries
or the Venture Entities has received any notice or has a reasonable basis
to believe that the conduct of their respective businesses will result in
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 any of the Company, its subsidiaries, the
Acquisition Subsidiaries and the Venture Entities 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.
(xxi) 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 hereunder or the consummation of the transactions
contemplated by this Agreement, the Prospectus and the Acquisition
Agreement, (including, without limitation, the concurrent offering of
Common Stock by the Company and the consummation of the other financing
transactions, as described in the Prospectus), except as described in the
Prospectus and such as have already been obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws
and except for the qualification of the Indenture under the 1939 Act.
(xxii)Possession of Licenses and Permits. Except as would not
result, singly or in the aggregate, in a Material Adverse Effect, each of
the Company, its Subsidiaries and, to the Company's knowledge, the
Acquisition Subsidiaries and the Venture Entities own or 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
their respective businesses as now operated or proposed to be operated
following the Torrington Acquisition as described in the Prospectus; each
of the Company, its Subsidiaries or, to the Company's knowledge, the
Acquisition Subsidiaries and the Venture Entities 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
10
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 none of the Company, its Subsidiaries or, to
the Company's knowledge, the Acquisition Subsidiaries or the Venture
Entities 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. Upon completion of the
Torrington Acquisition and the transfer of any such Governmental Licenses
to the Company, the Company will have the right to own and operate the
Acquisition Subsidiaries, the Venture Entities and the Separate Assets as
described in the Prospectus; except as described in the Prospectus, no
event has occurred which permits (nor has an event occurred which with
notice or lapse of time or both would permit) the revocation or
termination of any such Governmental Licenses either prior to or following
the completion of the Torrington Acquisition and the transfer of the
Governmental Licenses to the Company, or which might reasonably be
expected to have a Material Adverse Effect.
(xxiii) Title to Property. (A) Each of the Company, its subsidiaries
and, to the Company's knowledge, the Acquisition Subsidiaries and the
Venture Entities have good and marketable title to all real property owned
by them 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 following
the Torrington Acquisition. (B) Except as would not result, singly or in
the aggregate, in a Material Adverse Effect, all of the leases and
subleases which are material to the business of the Company, its
subsidiaries and, to the Company's knowledge, the Acquisition Subsidiaries
and the Venture Entities, and under which any of them hold properties
described in the Prospectus, are in full force and effect, and none of
them has any notice of any material claim of any sort that has been
asserted by anyone adverse to any of their rights under any of the leases
or subleases mentioned above, or affecting or questioning any of their
rights to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xxiv) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not 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 (the "1940 Act").
(xxv) Registration Rights. Except as disclosed in the Registration
Statement, there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(xxvi)Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) none of the Company, its Subsidiaries or, to
the Company's knowledge, the
11
Acquisition Subsidiaries or the Venture Entities is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or any judicial or administrative interpretation
thereof, 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) each of the
Company, its Subsidiaries and, to the Company's knowledge, the Acquisition
Subsidiaries and the Venture Entities have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or, to the
Company's knowledge, 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 any of the Company, its Subsidiaries or, to the
Company's knowledge, the Acquisition Subsidiaries and the Venture Entities
and (D) the Company is not aware of any events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting any of the Company, its
Subsidiaries or, to the Company's knowledge, the Acquisition Subsidiaries
and the Venture Entities relating to Hazardous Materials or any
Environmental Laws.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company delivered to the Representatives or to counsel for the Underwriters in
connection with the offering of the Securities contemplated hereby shall be
deemed a representation and warranty by the Company made as of the date of such
certificate (except to the extent a date is specified in such representation or
warranty, in which case such representation or warranty shall be deemed made as
of such date) to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate principal amount of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of ▇▇▇▇▇ Day,
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such other place as
shall be agreed upon by the Representatives and the Company, at 10:00 A.M.
(Eastern time) on the [ ] ( , if the pricing occurs after 4:30 P.M. (Eastern
time) on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days
12
after such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, 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
Securities which it has agreed to purchase. The Representatives, individually
and not as representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(c) Denominations; Registration. Certificates for the Securities shall be
in such denominations ($1,000 or integral multiples of $1,000) and registered in
the name of Cede & Co., pursuant to the DTC Agreement, and shall be made
available for examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
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 comply with the requirements of
Rule 430A and will notify the Representatives promptly, 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
relating thereto, 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
relating to the Securities 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 as soon as possible.
(b) Filing of Amendments. Until the completion of the distribution
of the Securities, 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 to the Prospectus, whether
13
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, with
respect to any documents to be filed under the 1933 Act or which will be
or will be deemed to be incorporated by reference in the Registration
Statement upon filing, 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 documents incorporated or deemed to
be incorporated by reference therein) 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. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, 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 the 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. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated 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 in the judgment of 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 the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such
statement or omission or to make the Registration Statement or the
Prospectus comply
14
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 reasonable
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 reasonably 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 the Company shall
not 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, 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 within the required time periods an earnings statement
covering a period of at least twelve months, beginning with the first
fiscal quarter of the Company after the effective date of the Registration
Statement (as the term "effective date" is defined in Rule 158(c) under
the 1933 Act), which earnings statement shall satisfy the provisions of
Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
(i) Rating of Securities. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Services, a division
of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), and ▇▇▇▇▇'▇ Investors Service,
Inc. ("Moody's") to provide their respective credit ratings of the
Securities.
(j) DTC. The Company will cooperate with the Representatives and use
its best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(k) Restriction on Sale of Securities. During the period commencing
on the date of the Prospectus and ending as of the Closing Time, the
Company will not, without the prior written consent of the
Representatives, directly or indirectly, issue, sell, offer or contract to
sell, grant any option for the sale of, or otherwise transfer or dispose
of, any debt securities of the Company (other than the sale of the
Securities under this Agreement) or securities of the Company that are
convertible into, or exchangeable or exercisable for, the Securities or
such debt securities.
15
(l) 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.
SECTION 4. 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 reproduction and delivery to the Underwriters of this
Agreement, the Indenture, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of certificates for the Securities to the Underwriters,
including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
fees and disbursements of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities,
(vi) any fees payable in connection with the rating of the Securities, (vii) the
qualification of the Securities under securities laws in 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, (viii) the printing and delivery to the Underwriters of copies of each
preliminary prospectus relating to the Securities, and of the Prospectus and any
amendments or supplements thereto, (ix) the reproduction and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, and
(x) the fees and expenses of any transfer agent, registrar or depositary for the
Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company 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 become
effective and at Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or, to the Company's knowledge, 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. A prospectus containing the
Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b)
16
(or a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule
430A).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received (a) the favorable opinion and (b) a
letter, each dated as of Closing Time, of ▇▇▇▇▇ Day, special counsel for
the Company, in the form set forth in Exhibit A and Exhibit B,
respectively, together with signed or reproduced copies of such opinion
and letter for each of the other Underwriters.
(c) Opinion of the General Counsel of the Company. At Closing Time,
the Representatives shall have received the favorable opinion of ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Senior Vice President and General Counsel of Company, in form
and substance satisfactory to the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters to
the effect set forth in Exhibit B.
(d) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the
other Underwriters, in form and substance reasonably satisfactory to the
Representatives. 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, 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 certificates of public officials.
(e) 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, (A) 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, taken
as whole, whether or not arising in the ordinary course of business, or
(B) any adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of Torrington, whether or
not arising in the ordinary course of business, which, individually or in
the aggregate with all other of such changes, is materially adverse to the
Company, its subsidiaries and Torrington, taken as a whole; 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, to such officer's knowledge, (i) there has been no such material
adverse change referred to in clause (A) above, (ii) there has been no
such adverse change referred to in clause (B) above, (iii) 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, and (iv) 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.
(f) Accountants' Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from each of Ernst
& Young LLP
17
and PricewaterhouseCoopers LLP a letter dated such date, in form and
substance 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 Letter. At Closing Time, the Representatives
shall have received from each of Ernst & Young LLP and
PricewaterhouseCoopers LLP a letter, 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) Consummation of the Torrington Acquisition. At Closing Time, the
Torrington Acquisition shall have been consummated in accordance with the
terms of the Acquisition Agreement.
(i) Consummation of the Concurrent Common Stock Offering. At or
prior to the Closing Time, the Company shall have consummated the public
offering of 11 million shares of its Common Stock, without par value
(without giving effect to any underwriters' over-allotment option), at a
minimum price per share of $14.75.
(j) Maintenance of Rating. At the Closing Time, the Securities shall
be rated at least "Baa1" by ▇▇▇▇▇'▇ and "BBB" by S&P, and the Company
shall have delivered to the Representatives a letter dated the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Representatives, confirming that the Securities have such ratings; and
subsequent to the execution and delivery of this Agreement and prior to
the Closing Time, there shall not have occurred a decrease in the rating
assigned to the Securities or any of the Company's other debt securities
by any "nationally recognized statistical rating agency", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, and no such securities rating agency shall have given any notice that
it has under surveillance or review, with possible negative implications
or that does not indicate the direction of the possible change, its rating
of the Securities or any of the Company's other debt securities.
(k) Necessary Amendments. At the Closing Time, the Company shall
have entered into an amendment to each of its existing reimbursement
agreements with, or obtained a waiver from, each of Bank One, N.A.,
Wachovia Bank, National Association and The Northern Trust Company, in
form and substance reasonably satisfactory to counsel for the
Underwriters, such that giving effect to the transactions contemplated by
this Agreement and as described in the Prospectus, including the
financings in connection with the Torrington Acquisition, will not result
in a default under such reimbursement agreements.
(l) Additional Documents. At Closing Time, 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
18
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 in
connection with the issuance and sale of the Securities as herein
contemplated shall be 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 and all the obligations of the several
Underwriters to purchase the Securities may be terminated by the
Representatives by notice to the Company at any time at or prior to
Closing Time and such termination shall be without liability of any party
to any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 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, to which any such Underwriter or control person
may become subject arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), including the Rule 430A Information, if
applicable, 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
relating to the Securities 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
6(d) below) any such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representatives),
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;
19
provided, however, that this indemnity agreement shall not 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), including the Rule 430A Information, or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) and provided, further, that the indemnity agreement contained in this
Section 6(a) shall not apply to any loss, liability, claim, damage or expense
resulting from the fact that a court of competent jurisdiction shall have made a
final, non-appealable determination that the untrue statement or omission shall
have been corrected in a preliminary prospectus relating to the Securities or
the Prospectus and a copy of such preliminary prospectus relating to the
Securities or Prospectus was delivered to such Underwriter in accordance with
the terms hereof and was not sent or given to such person by such Underwriter as
required and within the time required by the 1933 Act.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an Underwriter
or who controls an underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and who, at the date of this Agreement, is a
director or officer of the Company or controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, such indemnity
agreement is subject to the undertaking of the Company in the Registration
Statement under Item 17.
(b) Indemnification of Company, Directors and Officers. 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 against any and all loss, liability, claim, damage
and expense whatsoever to which the Company may become subject as described in
the indemnity contained in subsection (a) of this Section, 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),
including the Rule 430A Information or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), but only to the extent made
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) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) 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 unless and only to the extent it
did not otherwise learn of such action and 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 6(a) above, counsel to the indemnified
parties shall be selected by the Representatives, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. 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
20
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 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 6 or Section 7 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.
(d) 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, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 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 30 days prior to such settlement being
entered into, and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
SECTION 7. Contribution. If the indemnification provided for in Section 6
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 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 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 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
21
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 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 by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 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, 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, 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, and
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. The Underwriters'
respective obligations to contribute pursuant to this Section are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company submitted pursuant 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, and shall survive delivery of the Securities to the Underwriters.
22
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, 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, (A) 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, taken as a whole, whether or not arising in the ordinary course of
business, or (B) any adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of Torrington, whether
or not arising in the ordinary course of business, which, individually or in the
aggregate with all other of such changes, is materially adverse to the Company,
its subsidiaries and Torrington considered as one enterprise or (ii) if there
has occurred any material adverse change in the financial markets in the United
States or in 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 judgment of the Representatives, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) 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 a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (iv) 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 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time to purchase the Securities which it
or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), 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
aggregate principal amount of the Securities to be purchased hereunder,
the non-defaulting Underwriters shall be obligated, each severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting
23
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
this Agreement 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, either the Representatives or the Company shall have the right
to postpone the Closing Time 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 an Underwriter under this Section.
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇; and notices to the Company shall be directed to it
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Senior
Vice President and General Counsel.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 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 and the Company 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 12. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 13. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
THE TIMKEN COMPANY
By
--------------------------------------
Name:
Title:
By
--------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By
--------------------------------
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
25
SCHEDULE A
Principal Amount
of
Name of Underwriter Securities
------------------- ----------
Banc of America Securities LLC....................... [ ]
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.............................. [ ]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.................... [ ]
Banc One Capital Markets, Inc........................ [ ]
HSBC Securities (USA) Inc............................ [ ]
McDonald Investments Inc............................. [ ]
BNY Capital Markets, Inc............................. [ ]
Banca IMI SpA........................................ [ ]
Societe Generale..................................... [ ]
SunTrust Capital Markets, Inc........................ [ ]
-------------
Total................................................ $[ ]1,000,000
=============
Sch A-1
SCHEDULE B
THE TIMKEN COMPANY
$[ ],000,000
[ ]% Notes due 20[ ]
1. The initial public offering price of the Securities shall be [ ]% of
the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Underwriters for the Securities
shall be [ ]% of the principal amount thereof.
3. The interest rate on the Securities shall be [ ]% per annum.
Sch B-1
SCHEDULE C
MATERIAL SUBSIDIARIES OF THE TIMKEN COMPANY
[To be provided by Timken/▇▇▇▇▇ Day]
Jurisdiction of
Name organization
----------------------------------------------------------------------------------------
Timken Aerospace & Super Precision Bearings Delaware
Timken Aerospace & Super Precision Bearings-Europa B.V. Netherlands
Timken Aerospace & Super Precision Bearings-Singapore Pte. Ltd. Singapore
Timken Aerospace & Super Precision Bearings-UK, Ltd. England
Australian Timken Proprietary, Limited Victoria, Australia
Timken do Brasil Comercio e Industria, Ltda. Sao Paulo, Brazil
British Timken Limited England
Canadian ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Timken Communications Company Ohio
Timken Desford Steel Limited England
EDC, Inc. Ohio
Timken Engineering and Research -India Private Limited India
Timken Espana, S.L. Spain
Timken Europa GmbH Germany
Timken Europe B.V. Netherlands
Timken Finance Europe B.V. Netherlands
Handpiece Headquarters Corp. Delaware
Timken India Limited India
Timken Italia, S.R.L. Italy
Timken Latrobe Steel Pennsylvania
Timken Latrobe Steel Distribution Delaware
Timken Latrobe Steel-Europe Ltd. England
Timken de Mexico S.A. de C.V. Mexico
MPB Export Corporation Delaware
Nihon Timken K.K. Japan
Timken Precision Components Europe France
Timken Polska Sp.z.o.o. Poland
Rail Bearing Service Corporation ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Romania S.A. Romania
The Timken Corporation Ohio
The Timken Service & Sales Co. Ohio
Timken Servicios Administrativos S.A. de C.V. Mexico
Timken Singapore Pte. Ltd. Singapore
Timken South Africa (Pty.) Ltd. South Africa
Timken de Venezuela C.A. Venezuela
Yantai Timken Company Limited China
Sch D-1
