Exhibit 1.1
$250,000,000
Steelcase Inc.
6.5% Senior Unsecured Notes due 2011
Underwriting Agreement
August 2, 2006
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Banc of America Securities LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Steelcase Inc., a Michigan corporation (the "Company"), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), $250,000,000 principal amount of its 6.5% Senior Unsecured
Notes due 2011 having the terms set forth in Schedule 2 hereto (the
"Securities"). The Securities will be issued pursuant to an Indenture to be
dated as of August 7, 2006 (the "Indenture") between the Company and ▇.▇. ▇▇▇▇▇▇
Trust Company, National Association, as trustee (the "Trustee").
1. Registration Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Securities Act"), a registration statement on Form S-3 (File
No. 333-131464), including a prospectus (the "Basic Prospectus"), relating to
the debt securities to be issued from time to time by the Company. The Company
has also filed, or proposes to file, with the Commission pursuant to Rule 424
under the Securities Act a prospectus supplement specifically relating to the
Securities (the "Prospectus Supplement"). The registration statement, as amended
at the time it becomes effective, including the information, if any, deemed
pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness ("Rule 430
Information"), is referred to herein as the "Registration Statement"; and as
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used herein, the term "Prospectus" means the Basic Prospectus as supplemented by
the Prospectus Supplement in the form first used (or made available upon request
of purchasers pursuant to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Securities and the term "Preliminary Prospectus"
means the preliminary prospectus supplement specifically relating to the
Securities together with the Basic Prospectus. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Registration
Statement and Prospectus. References herein to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein. The
terms "supplement," "amendment" and "amend" as used herein with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed by the Company under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (the "Exchange Act") subsequent to the date of this
Agreement which are deemed to be incorporated by reference therein. For purposes
of this Agreement, the term "Effective Time" means the effective date of the
Registration Statement with respect to the offering of Securities, as determined
for the Company pursuant to Section 11 of the Securities Act and Item 512 of
Regulation S-K, as applicable.
At or prior to the time when sales of the Securities will be first made
(the "Time of Sale"), the Company will prepare certain information
(collectively, the "Time of Sale Information") which information is identified
in Schedule 3 hereto.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees
to issue and sell the Securities to the several Underwriters as provided in this
Agreement, and each Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective
principal amount of Securities set forth opposite such Underwriter's name in
Schedule 1 hereto at a price equal to 99.115% of the principal amount thereof
plus accrued interest, if any, from August 7, 2006 to the Closing Date (as
defined below). The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as
provided herein.
(b) Payment for and delivery of the Securities shall be made at the
offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
at 10:00 A.M., New York City time, on August 7, 2006, or at such other time or
place on the same or such other date, not later than the fifth business day
thereafter, as the Representatives and the Company may agree upon in writing.
The time and date of such payment and delivery is referred to herein as the
"Closing Date."
(c) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representatives against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriters, of one or more global notes representing
the Securities (collectively, the "Global Note"), with any transfer taxes
payable in connection with the sale of the
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Securities duly paid by the Company. The Global Note will be made available for
inspection by the Representatives not later than 1:00 P.M., New York City time,
on the business day prior to the Closing Date.
(d) The Company acknowledges and agrees that the Underwriters named in
this Agreement are acting solely in the capacity of an arm's length contractual
counterparty to the Company with respect to any offering of Securities
contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other person. Additionally, no such Underwriter is advising the
Company or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby,
and such Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by such Underwriters named herein of the
Company, the transactions contemplated thereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) Registration Statement and Prospectus. The Registration Statement is
an "automatic effective registration statement" as defined under Rule 405 of the
Securities Act that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the Commission to
the use of such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration Statement has
been issued by the Commission and no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or related to the offering
has been initiated or, to the knowledge of the Company, threatened by the
Commission; as of the Effective Time, the Registration Statement complied in all
material respects with the Securities Act and the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and did not or will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment or supplement
thereto and as of the Closing Date, the Prospectus 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 in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with
respect to (i) that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) of the Trustee under the
Trust Indenture Act or (ii) any statements or omissions in the Registration
Statement and the Prospectus and any amendment or supplement thereto made in
reliance upon and in conformity with information relating to any Underwriter, as
described on Schedule 5
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hereto, furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(b) Time of Sale Information. The Time of Sale Information, at the Time of
Sale and at the Closing Date did not and will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in such Time of Sale Information. No statement of material fact included in
the Prospectus has been omitted from the Time of Sale Information and no
statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus
and the Prospectus, the Company (including its agents and representatives, other
than the Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any "written communication" (as defined in Rule 405 under
the Securities Act) that constitutes an offer to sell or solicitation of an
offer to buy the Securities (each such communication by the Company or its
agents and representatives (other than a communication referred to in clause (i)
below) an "Issuer Free Writing Prospectus") other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on Schedule 3
hereto and other written communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in all
material respects with the Securities Act, has been filed in accordance with the
Securities Act (to the extent required thereby) and, when taken together with
the Preliminary Prospectus accompanying, or delivered prior to delivery of, or
filed prior to the first use of such Issuer Free Writing Prospectus, did not,
and at the Closing Date will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with
respect to any statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus or the Time of Sale Information, when
filed with the Commission, conformed or will conform, as the case may be, in all
material respects with the requirements of the Exchange Act and did not and will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that, as to future
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filings, such representations relate only to those filings made prior to the
termination of the offering.
(e) Financial Statements. The consolidated financial statements and the
related notes thereto included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus comply as to form in
all material respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly in all material respects the
financial position of the Company and its subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash flows for the
periods specified; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods covered thereby except as otherwise noted therein, and
the supporting schedules included or incorporated by reference in the
Registration Statement present fairly in all material respects the information
required to be stated therein; and the other financial information included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting records of
the Company and its subsidiaries and presents fairly in all material respects
the information shown thereby.
(f) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus, (i)
there has not been any material change in the capital stock or long-term debt of
the Company or any of its subsidiaries, or, other than in the ordinary course of
business, any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a whole; (ii)
other than in the ordinary course of business, neither the Company nor any of
its subsidiaries has entered into any transaction or agreement that is material
to the Company and its subsidiaries taken as a whole or incurred any liability
or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor disturbance or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority that is material to the
Company and its subsidiaries taken as a whole, except in each case as otherwise
disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus.
(g) Organization and Good Standing. The Company and each of its
subsidiaries have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to transact business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses, as described in the Registration
Statement, the Time of Sale Information and the
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Prospectus, requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties, financial
position or results of operations of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect").
(h) Capitalization. The Company has an authorized capitalization as set
forth in the Registration Statement, the Time of Sale Information and the
Prospectus under the heading "Capitalization"; and all the outstanding shares of
capital stock or other equity interests of each wholly-owned subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and
non-assessable (except, in the case of any foreign subsidiary, for directors'
qualifying shares and except as otherwise described in the Registration
Statement, the Time of Sale Information and the Prospectus) and, with respect to
the "Significant Subsidiaries" of the Company (as such term is defined in Rule
1-02(w) of Regulation S-X promulgated under the Securities Act), are owned
directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party.
(i) Due Authorization. The Company has full right, power and authority to
execute and deliver this Agreement, the Securities and the Indenture
(collectively, the "Transaction Documents") and to perform its obligations
hereunder and thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby has been
duly and validly taken.
(j) The Indenture. The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust Indenture
Act and, assuming due execution and delivery by the Trustee, constitutes a valid
and legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability, whether
enforceability is considered in a proceeding at law or equity (collectively, the
"Enforceability Exceptions").
(k) The Securities. The Securities have been duly authorized by the
Company and, when duly executed, authenticated, issued and delivered as provided
in the Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding obligations
of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits
of the Indenture.
(l) Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
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(m) Descriptions of the Transaction Documents. Each of the Transaction
Documents conforms in all material respects to the description thereof contained
in the Registration Statement, the Time of Sale Information and the Prospectus.
(n) No Violation or Default. Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter or by-laws or similar
organizational documents; and neither the Company nor any of its subsidiaries is
(i) in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject; or (ii) in violation of any law or
statute or any judgment, order, rule or regulation, applicable to the Company or
its subsidiaries, of any court or arbitrator or governmental or regulatory
authority; except, in the case of clauses (i) and (ii) above, for any such
default or violation that would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company
of each of the Transaction Documents, the issuance and sale of the Securities
and compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is
subject or (ii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or
regulatory authority applicable to the Company and its subsidiaries, except, in
each case, for any such conflict, breach or violation that would not,
individually or in the aggregate, have a Material Adverse Effect; or (iii)
result in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of its Significant Subsidiaries.
(p) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company of each of the Transaction Documents, the issuance and sale of
the Securities and compliance by the Company with the terms thereof and the
consummation of the transactions contemplated thereby, except for such consents,
approvals, authorizations, orders and registrations or qualifications (i) as
have been obtained under the Securities Act and the Trust Indenture Act and (ii)
as may be required under applicable state securities laws in connection with the
purchase and distribution of the Securities by the Underwriters.
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(q) Legal Proceedings. Except as described in the Registration Statement,
the Time of Sale Information and the Prospectus, there are no legal,
governmental or regulatory investigations, actions, suits or proceedings pending
to which the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is the subject that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect; no such investigations, actions, suits or proceedings
are, to the best knowledge of the Company, threatened or contemplated by any
governmental or regulatory authority or threatened by others; and (i) there are
no current or, to the knowledge of the Company, pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities
Act to be described in the Registration Statement that are not so described in
the Registration Statement, the Time of Sale Information and the Prospectus and
(ii) there are no contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement that are
not so filed as exhibits to the Registration Statement.
(r) Independent Accountants. BDO ▇▇▇▇▇▇▇, LLP, who has certified certain
financial statements of the Company and its consolidated subsidiaries, is an
independent registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and
as required by the Securities Act.
(s) Investment Company Act. The Company is not and, after giving effect to
the offering and sale of the Securities and the application of the proceeds
thereof as described in the Registration Statement, the Time of Sale Information
and the Prospectus, will not be an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder (collectively, "Investment Company Act").
(t) Status under the Securities Act. The Company is not an ineligible
issuer and is a well-known seasoned issuer, in each case as defined under the
Securities Act, at the times specified in the Securities Act in connection with
the offering of the Securities. The Company has paid the registration fee for
this offering pursuant to Rule 456(b)(1) under the Securities Act or will pay
such fees within the time period required by such rule (without giving effect to
the proviso therein) and in any event prior to the Closing Date.
(u) Title to Intellectual Property. Except as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect,
the Company and its subsidiaries own or possess adequate rights to use all
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) described as material in the
Company's Annual report on Form 10-K for the year ended February 24, 2006.
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(v) No Labor Disputes. No labor disturbance by or dispute with employees
of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, has been threatened except as would not have a Material Adverse Effect.
(w) Compliance With Environmental Laws. Except as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect,
the Company and its subsidiaries (x) are in compliance with any and all
applicable federal, state, local and foreign laws rules, regulations,
requirements, decisions and orders relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, "Environmental Laws"); (y) have
received and are in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable Environmental Laws
to conduct their respective businesses as currently conducted; and (z) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants.
(x) Disclosure Controls. The Company and its subsidiaries maintain an
effective system of "disclosure controls and procedures" (as defined in Rule
13a-15(e) of the Exchange Act) that is designed to ensure that information
required to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Commission's rules and forms, including
controls and procedures designed to ensure that such information is accumulated
and communicated to the Company's management as appropriate to allow timely
decisions regarding required disclosure. The Company and its subsidiaries have
carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(y) Accounting Controls. The Company and its subsidiaries maintain systems
of "internal control over financial reporting" (as defined in Rule 13a-15(f) of
the Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of the Company's principal executive
and principal financial officers, or persons performing similar functions, to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. Except as disclosed in the
Registration Statement, the Time of Sale Information and the Prospectus, there
are no material weaknesses in the Company's internal controls.
(z) Compliance with OFAC. None of the Company, any of its subsidiaries or,
to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury ("OFAC"); and the Company will not directly or
indirectly use the proceeds of the offering of the Shares hereunder, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the
9
purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(aa) Statistical and Market Data. Nothing has come to the attention of the
Company that has caused the Company to believe that the statistical and
market-related data included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus is not based on or
derived from sources that the Company reasonably believes are reliable and
accurate in all material respects; it being understood, however, that the
Company has not conducted any independent investigation of the accuracy thereof.
(bb) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the part of
the Company or, to the knowledge of the Company, any of the Company's directors
or officers, in their capacities as such, to comply with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in
connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"), including Section 402 related
to loans and Sections 302 and 906 related to certifications.
4. Further Agreements of the Company. The Company covenants and agrees
with each Underwriter that:
(a) Filings with the Commission. The Company will (i) pay the registration
fees for this offering within the time period required by Rule 456(b)(i) under
the Securities Act prior to the Closing Date and (ii) file the Prospectus in a
form approved by the Underwriters with the Commission pursuant to Rule 424 under
the Securities Act not later than the close of business on the second business
day following the date of determination of the public offering price of the
Securities or, if applicable, such earlier time as may be required by Rule
424(b) and Rule 430A, 430B or 430C under the Securities Act. The Company will
file any Issuer Free Writing Prospectus to the extent required by Rule 433 under
the Securities Act; and the Company will furnish copies of the Prospectus and
each Issuer Free Writing Prospectus (to the extent not previously delivered) to
the Underwriters in New York City prior to 10:00 A.M., New York City time, on
the business day next succeeding the date of this Agreement in such quantities
as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, to each
Underwriter during the Prospectus Delivery Period (as defined below), as many
copies of the Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein) and each Issuer Free Writing
Prospectus (if applicable) as the Representatives may reasonably request. As
used herein, the term "Prospectus Delivery Period" means such period of time
after the first date of the public offering of the Securities as in the opinion
of counsel for the Underwriters a prospectus relating to the Securities is
required by law to be delivered (or required to be delivered but for Rule 172
under the Securities Act) in connection with sales of the Securities by any
Underwriter or dealer.
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(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before
using, authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not use, authorize,
approve, refer to or file any such Issuer Free Writing Prospectus or file any
such proposed amendment or supplement to which the Representatives reasonably
object.
(d) Notice to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when any
amendment to the Registration Statement has been filed or becomes effective;
(ii) when any supplement to the Prospectus or any amendment to the Prospectus or
any Issuer Free Writing Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission
for any additional information; (iv) of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or preventing
or suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose or pursuant to
Section 8A of the Securities Act; (v) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances existing when the
Prospectus, the Time of Sale Information or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; and (vi) of the receipt
by the Company of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act and (vii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the Securities
for offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use its reasonable best
efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such qualification of
the Securities and, if any such order is issued, will obtain as soon as possible
the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i)
any event shall occur or condition shall exist as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with
11
the Commission and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law and (2) if at any time prior to the Closing Date (i) any
event shall occur or condition shall exist as a result of which the Time of Sale
Information as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances, not misleading or
(ii) it is necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the
Commission (to the extent required) and furnish to the Underwriters and to such
dealers as the Representatives may designate, such amendments or supplements to
the Time of Sale Information as may be necessary so that the statements in the
Time of Sale Information as so amended or supplemented will not, in the light of
the circumstances, be misleading or so that the Time of Sale Information will
comply with law.
(f) Blue Sky Compliance. The Company will qualify the Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will continue such qualifications
in effect so long as required for distribution of the Securities; provided that
the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it
would not otherwise be required to so qualify, (ii) file any general consent to
service of process in any such jurisdiction or (iii) subject itself to taxation
in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. During the period from the date hereof through and
including the Closing Date, the Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell or otherwise
dispose of any debt securities issued or guaranteed by the Company and having a
tenor of more than one year.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale
of the Securities as described in the Registration Statement, the Time of Sale
Information and the Prospectus under the heading "Use of Proceeds".
(j) No Stabilization. The Company will not take, directly or indirectly,
any action designed to or that could reasonably be expected to cause or result
in any stabilization or
12
manipulation of the price of the Securities in violation of Regulation M under
the Securities Act.
(k) Filing of Exchange Act Documents. The Company will file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act during the Prospectus Delivery Period.
(l) Record Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby
represents and agrees that
(a) It has not and will not use, authorize use of, refer to, or
participate in the planning for use of, any "free writing prospectus", as
defined in Rule 405 under the Securities Act other than (i) a free writing
prospectus that contains no "issuer information" (as defined in Rule 433(h)(2)
under the Securities Act) that was not previously included (including through
incorporation by reference) in the Preliminary Prospectus or a previously filed
Issuer Free Writing Prospectus, (ii) any Issuer Free Writing Prospectus listed
on Schedule 3 or prepared pursuant to Section 3(c) or Section 4(c) above, or
(iii) any free writing prospectus prepared by such Underwriter and approved by
the Company in advance in writing (each such free writing prospectus referred to
in clauses (i) or (iii), an "Underwriter Free Writing Prospectus").
(b) It has not and will not distribute any Underwriter Free Writing
Prospectus referred to in clause (a)(i) of this Section 5 in a manner reasonably
designed to lead to its broad unrestricted dissemination.
(c) It has not and will not, without the prior written consent of the
Company, use any free writing prospectus that contains the final terms of the
Securities unless such terms have previously been included in a free writing
prospectus filed with the Commission; provided that Underwriters may use a term
sheet substantially in the form of Schedule 4 hereto without the consent of the
Company; provided further that any Underwriter using such term sheet shall
notify the Company, and provide a copy of such term sheet to the Company prior
to, or substantially concurrently with, the first use of such term sheet.
(d) It will, pursuant to reasonable procedures developed in good faith,
retain copies of each Underwriter Free Writing Prospectus in accordance with
Rule 433 under the Securities Act.
(e) It is not subject to any pending proceeding under Section 8A of the
Securities Act with respect to the offering of the Securities (and will promptly
notify the Company if any such proceeding against it is initiated during the
Prospectus Delivery Period).
13
6. Conditions of Underwriters' Obligations. The obligation of each
Underwriter to purchase Securities on the Closing Date as provided herein is
subject to the performance by the Company of its covenants and other obligations
hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. If a post-effective amendment
to the Registration Statement is required to be filed under the Securities Act,
such post-effective amendment shall have become effective, and the
Representatives shall have received notice thereof, not later than 5:00 P.M.,
New York City time, on the date of this Agreement; no order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section
8A under the Securities Act shall be pending before or threatened by the
Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of
an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the
Securities Act) and in accordance with Section 4(a) hereof; and all requests by
the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of
the Company contained herein shall be true and correct on the date hereof and on
and as of the Closing Date; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock of or guaranteed by
the Company or any of its subsidiaries by any "nationally recognized statistical
rating organization", as such term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its
outlook with respect to, its rating of the Securities or of any other debt
securities or preferred stock of or guaranteed by the Company or any of its
subsidiaries (other than an announcement with positive implications of a
possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described
in Section 3(f) hereof shall have occurred or shall exist, which event or
condition is not described in the Time of Sale Information (excluding any
amendment or supplement thereto) and the Prospectus (excluding any amendment or
supplement thereto) and the effect of which in the reasonable judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer's Certificate. The Representatives shall have received on and
as of the Closing Date a certificate of an executive officer of the Company who
has specific
14
knowledge of the Company's financial matters and is reasonably satisfactory to
the Representatives (i) confirming that such officer has carefully reviewed the
Registration Statement, the Time of Sale Information and the Prospectus and, to
the knowledge of such officer, the representations set forth in Sections 3(a)
and 3(b) hereof are true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are true and
correct and that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d)
above.
(f) Comfort Letters. On the date of this Agreement and on the Closing
Date, BDO ▇▇▇▇▇▇▇, LLP shall have furnished to the Representatives, at the
request of the Company, letters, dated the respective dates of delivery thereof
and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representatives, containing statements and information of the type
customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus; provided that the letter delivered on the
Closing Date shall use a "cut-off" date no more than three business days prior
to the Closing Date.
(g) Opinion of Counsel for the Company. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Company, shall have furnished to the
Representatives, at the request of the Company, their written opinion, dated the
Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Annex A hereto.
(h) Opinion of Counsel for the Underwriters. The Representatives shall
have received on and as of the Closing Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
(i) Opinion of Counsel. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Corporate Counsel and
Assistant Secretary for the Company, shall have furnished to the Representatives
her written opinion, dated the Closing Date and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, to the
effect set forth in Annex B hereto.
(j) No Legal Impediment to Issuance. No action shall have been taken and
no statute, rule, regulation or order shall have been enacted, adopted or issued
by any federal, state or foreign governmental or regulatory authority that
would, as of the Closing Date, prevent the issuance or sale of the Securities;
and no injunction or order of any federal, state or foreign court shall have
been issued that would, as of the Closing Date, prevent the issuance or sale of
the Securities.
15
(k) Good Standing. The Representatives shall have received on and as of
the Closing Date satisfactory evidence of the good standing of the Company and
its Significant Subsidiaries in their respective jurisdictions of organization
and their good standing in such other jurisdictions as the Representatives may
reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such
jurisdictions.
(l) Additional Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, not misleading, or (ii) any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time
of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, in each
case except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, its
officers and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the indemnity set forth in paragraph (a) above, but only with respect
to any losses, claims, damages or liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted as such fees and expenses are
incurred) that arise out of, or are based upon, any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to such Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement
16
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it
being understood and agreed that the only such information consists of the
information identified in Schedule 5 hereto.
(c) Notice and Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnification may
be sought (the "Indemnifying Person") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 7 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or defenses) by such
failure; and provided, further, that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 7. If any such proceeding
shall be brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others entitled to indemnification pursuant to this
Section 7 that the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such proceeding as
incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Underwriter,
its affiliates, directors and officers and any control persons of such
Underwriter shall be designated in writing by the Representatives and any such
separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for
17
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by the
Indemnifying Person of such request and (ii) the Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such request prior to
the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of any
Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (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 from the offering of the Securities 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)
but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, 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 shall be deemed to be in the same
respective proportions as the net proceeds (before deducting expenses) received
by the Company from the sale of the Securities and the total underwriting
discounts and commissions received by the Underwriters in connection therewith,
in each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
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 that does not
take account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses incurred by such
18
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 7, in no event shall an Underwriter be required
to contribute any amount in excess of the amount by which the total price at
which the Securities underwritten by such Underwriter were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to their respective purchase obligations
hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any Indemnified Person at law or in equity.
8. Termination. This Agreement may be terminated in the absolute
discretion of the Representatives, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
9. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter
defaults on its obligation to purchase the Securities that it has agreed to
purchase hereunder, the non-defaulting Underwriters may in their discretion
arrange for the purchase of such Securities by other persons satisfactory to the
Company on the terms contained in this Agreement. If, within 36 hours after any
such default by any Underwriter, the non-defaulting Underwriters do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of 36 hours within which to procure other persons satisfactory to
the non-defaulting Underwriters to purchase such Securities on such terms. If
other persons become obligated or agree to purchase the Securities of a
defaulting Underwriter, either the non-defaulting Underwriters or the Company
may postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context otherwise
19
requires, any person not listed in this Agreement that, pursuant to this Section
9, purchases Securities that a defaulting Underwriter agreed but failed to
purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities that such Underwriter agreed to
purchase hereunder plus such Underwriter's pro rata share (based on the
principal amount of Securities that such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
principal amount of such Securities that remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this
Agreement shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this Section 9 shall
be without liability on the part of the Company, except that the Company will
continue to be liable for the payment of expenses as set forth in Section 10
hereof and except that the provisions of Section 7 hereof shall not terminate
and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default.
10. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable by the Company in that connection; (ii) the
costs incident to the preparation, printing and filing under the Securities Act
of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Time of Sale Information and the Prospectus (including
all exhibits, amendments and supplements thereto) and the distribution thereof;
(iii) the costs of reproducing and distributing each of the Transaction
Documents; (iv) the fees and expenses of the Company's counsel and independent
accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representatives may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the
Underwriters), such fees and disbursements not to exceed $10,000); (vi) any fees
charged by rating agencies for rating the Securities; (vii) the fees and
expenses of the Trustee and any paying agent (including related fees and
expenses of
20
any counsel to such parties); (viii) all expenses and application fees incurred
in connection with any filing with, and clearance of any offering by, the
National Association of Securities Dealers, Inc.; and (ix) all expenses incurred
by the Company in connection with any "road show" presentation to potential
investors. It is understood, however, that except as provided in this Section 10
and Section 7, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel and any advertising expenses
connected with any offers they may make.
(b) If (i) this Agreement is terminated pursuant to Section 8, (ii) the
Company for any reason fails to tender the Securities for delivery to the
Underwriters or (iii) the Underwriters decline to purchase the Securities for
any reason permitted under this Agreement, the Company agrees to reimburse the
Underwriters (other than defaulting Underwriters pursuant to Section 9) for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and any controlling persons referred
to herein, and the affiliates of each Underwriter referred to in Section 7
hereof. Nothing in this Agreement is intended or shall be construed to give any
other person any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein. No purchaser of Securities
from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant
hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement
or any investigation made by or on behalf of the Company or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; and (c) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
14. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the
Underwriters, and any such action taken by the Representatives shall be binding
upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Underwriters
21
shall be given to the Representatives at the address set forth herein. Notices
to the Company shall be given to it at: ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President -- Finance
Treasurer, Steelcase Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(fax: (▇▇▇) ▇▇▇-▇▇▇▇) and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Corporate Counsel and
Assistant Secretary, Steelcase Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇).
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(e) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
(f) Counterparts. This Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
22
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
STEELCASE INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President,
Chief Financial Officer
Accepted: August 2, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
BANC OF AMERICA SECURITIES LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
23
Schedule 1
Underwriter Principal Amount
-------------------------------- ----------------
Banc of America Securities LLC $100,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $100,000,000
BNP Paribas Securities Corp. $ 12,500,000
▇▇▇▇▇▇▇, Sachs & Co. $ 12,500,000
HSBC Securities (USA) Inc. $ 12,500,000
LaSalle Financial Services, Inc. $ 12,500,000
------------
Total $250,000,000
24
Schedule 2
Representatives and Addresses for Notices:
Banc of America Securities LLC
Attn: High Grade Transaction Management
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Certain Terms of the Securities:
Title of Securities: 6.5% Senior Notes due 2011
Aggregate Principal Amount of Securities: $250,000,000
Maturity Date: August 15, 2011
Interest Rate: 6.5%
Interest Payment Dates: August 15 and February 15, commencing February 15,
2007
Record Dates: February 1 and August 1
Optional Redemption: The notes are redeemable at the option of the
Company at any time, in whole or in part, at a
redemption price equal to the greater of (i) 100%
of the principal amount of such notes and (ii) the
sum of the present values of remaining scheduled
payments of principal and interest thereon
(exclusive of interest accrued to the date of
redemption) discounted to the redemption date on a
semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the
Treasury Rate plus 25 basis points.
25
Schedule 3
a. TIME OF SALE INFORMATION
Preliminary Prospectus dated August 1, 2006
Term Sheet dated August 2, 2006
26
Schedule 4
Steelcase Inc.
Pricing Term Sheet
ISSUER: Steelcase Inc.
SIZE: $250,000,000
MATURITY: August 15, 2011
COUPON: 6.5%
PRICE: 99.715% of face amount
YIELD TO MATURITY: 6.567%
SPREAD TO BENCHMARK TREASURY: 1.68%
BENCHMARK TREASURY: 4.875% due 07/11
BENCHMARK TREASURY PRICE: ▇▇-▇▇ ▇/▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇: 4.887%
INTEREST PAYMENT DATES: February 15 and August 15, commencing February 15,
2007
OPTIONAL REDEMPTION: The notes are redeemable at the option of the
Company at any time, in whole or in part, at a
redemption price equal to the greater of (i) 100%
of the principal amount of such notes and (ii) the
sum of the present values of remaining scheduled
payments of principal and interest thereon
(exclusive of interest accrued to the date of
redemption) discounted to the redemption date on a
semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the
Treasury Rate plus 25 basis points.
SETTLEMENT: T+3; August 7, 2006
CUSIP: ▇▇▇▇▇▇▇▇▇
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING ▇▇▇▇▇ ON THE
SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY
DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF
YOU REQUEST IT BY CALLING ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. COLLECT AT (▇▇▇) ▇▇▇-▇▇▇▇
OR CALLING OR E-MAILING BANC OF AMERICA SECURITIES LLC AT (▇▇▇) ▇▇▇-▇▇▇▇ OR
▇▇.▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
27
Schedule 5
Under the caption "Underwriting" in the Prospectus, (i) the second paragraph,
(ii) the third paragraph and (iii) the fourth paragraph.
28
Annex A
Form of Opinion of Counsel for the Company
1. The Indenture, assuming due execution and delivery thereof, constitutes
a valid and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the Enforceability Exceptions, and
complies as to form in all material respects with the requirements of the Trust
Indenture Act.
2. The Securities, when duly authenticated by the Trustee and issued and
delivered by the Company against payment therefor in accordance with the terms
of the Underwriting Agreement and the Indenture, will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions.
3. The statements in the Preliminary Prospectus and the Prospectus under
the caption "Description of Notes" (other than "Book-Entry System; Delivery and
Form") insofar as such statements purport to summarize certain provisions of the
Transaction Documents, fairly summarize such provisions in all material
respects.
4. The statements in the Preliminary Prospectus and the Prospectus under
the caption "Underwriting" insofar as such statements purport to summarize
certain provisions of the Underwriting Agreement, fairly summarize such
provisions in all material respects.
5. No Government Approval, which has not been obtained or taken and is not
in full force and effect, is required to authorize, or is required for, the
execution or delivery of the Transaction Documents by the Company or the
consummation by the Company of the transactions contemplated thereby.
6. The Company is not and, solely after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Preliminary Prospectus and the Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act.
Such counsel shall also state that they have participated in conferences
with officers and other representatives of the Company, representatives of its
independent accountants and representatives of the Underwriters and counsel for
the Underwriters at which conferences the contents of the Registration
Statement, the General Disclosure Package and the Prospectus and related matters
were discussed. Such counsel did not participate in the preparation of the
Incorporated Documents, but have, however, reviewed such documents and discussed
the business and affairs of the Company with officers and other representatives
of the Company. Such counsel does not pass upon, or assume responsibility for,
the accuracy, completeness or fairness of statements contained or incorporated
by reference in the Registration Statement, the General Disclosure Package and
the Prospectus and have made no independent check or verification thereof
(except to the limited extent referred to in paragraph 3 above). On the basis of
the foregoing, (i) the
29
Registration Statement, at the Applicable Time and the Base Prospectus, as
supplemented by the Prospectus Supplement, as of the date of the Prospectus
Supplement, appeared on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the Rules and
Regulations (except that in each case such counsel does not express any view as
to the financial statements, schedules and other financial information included
or incorporated by reference therein or excluded therefrom, including the Form
T-1)) and (ii) no facts have come to the attention of such counsel that have
caused such counsel to believe that the Registration Statement, at the
Applicable Time, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Base Prospectus, as supplemented
by the Prospectus Supplement, as of the date of the Prospectus Supplement and as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except that in each case such counsel does not express any
view as to the financial statements, schedules and other financial information
included or incorporated by reference therein or excluded therefrom or the
statements contained in the exhibits to the Registration Statement, including
the Form T-1). In addition, on the basis of the foregoing, no facts have come to
the attention of such counsel that have caused such counsel to believe that the
General Disclosure Package, as of the Applicable Time, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (except that such counsel does not express
any view as to the financial statements, schedules and other financial
information included or incorporated by reference therein or excluded therefrom
or the statements contained in the exhibits to the Registration Statement,
including the Form T-1). For purposes of the foregoing, the term "General
Disclosure Package" means the Preliminary Prospectus and Term Sheet dated August
2, 2006 issued at or prior to the Applicable Time and the term "Applicable Time"
means 12:20 p.m. (Eastern time) on August 2, 2006 which you have advised such
counsel is the time of the first contract of sale of the Securities.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
The opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP described above
shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
30
Annex B
Form of Opinion of Counsel
1. The documents incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Prospectus, when filed with the Commission,
or as subsequently amended, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Exchange Act
(except that in each case we do not express any view as to the financial
statements, schedules and other financial information included or incorporated
by reference therein or excluded therefrom, including the State of Eligibility
on Form T-1).
2. The Company and each of its domestic Significant Subsidiaries are
validly existing and in good standing under the laws of the State of Michigan,
are duly qualified to transact business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all
requisite corporate power and authority necessary to own or lease, as the case
may be, their respective properties and to conduct the businesses in which they
are engaged, except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, have a Material Adverse
Effect.
3. The Company has an authorized capitalization as set forth in the
Preliminary Prospectus and the Prospectus under the heading "Capitalization."
4. The Indenture has been duly authorized, executed and delivered by the
Company.
5. The Securities have been duly authorized, executed and delivered by the
Company.
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
7. The execution and delivery by the Company of each of the Transaction
Documents and the consummation of the transactions contemplated thereby,
including the issuance and sale of the Securities, will not (i) conflict with
the charter or the by-laws of the Company; (ii) constitute a violation of, or a
breach or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to the terms of any Applicable Contract; or
(iii) violate or conflict with, or result in any contravention of, any
Applicable Law.
8. To the knowledge of such counsel, except as described in the
Preliminary Prospectus and the Prospectus, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to which the
Company or any of its Significant Subsidiaries is a party or to which any
property of the Company or any of its
31
Significant Subsidiaries is the subject which, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect; and, to the
knowledge of such counsel, no such investigations, actions, suits or proceedings
are threatened or contemplated by any governmental or regulatory authority or
threatened by others.
9. The Company has all requisite corporate power and authority to perform
its obligations under the Transaction Documents.
For purposes of the foregoing:
"Applicable Contract" means those agreements and instruments filed as
exhibits to the Company's Annual Report on Form 10-K for the fiscal year ended
February 24, 2006 and all subsequent reports which have been filed by the
Company with the Commission under the Exchange Act.
"Applicable Law" means those laws, rules and regulations of the State of
Michigan and the federal laws of the United States of America, in each case,
which, in the experience of such counsel, are normally applicable to
transactions of the type contemplated by the Transaction Documents (other than
the United States federal securities laws, state and foreign securities or blue
sky laws and antifraud laws).
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Underwriters.
32