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Exhibit 1.1
THE TIMKEN COMPANY
(an Ohio corporation)
11,000,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: February -, 2003
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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) Acquisition Agreement................................................................. 7
(xii) Authorization and Description of Securities........................................... 7
(xiii) Absence of Defaults and Conflicts..................................................... 7
(xiv) Distributions and Dividend Payments................................................... 8
(xv) Internal Controls..................................................................... 9
(xvi) Absence of Labor Dispute.............................................................. 9
(xvii) Absence of Proceedings................................................................ 9
(xviii) Possession of Intellectual Property................................................... 9
(xix) Absence of Further Requirements....................................................... 10
(xx) Possession of Licenses and Permits.................................................... 10
(xxi) Title to Property..................................................................... 10
(xxii) Investment Company Act................................................................ 11
(xxiii) Registration Rights................................................................... 11
(xxiv) Environmental Laws.................................................................... 11
(b) Officer's Certificates....................................................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing................................................... 12
(a) Initial Securities........................................................................... 12
(b) Option Securities............................................................................ 12
(c) Payment...................................................................................... 12
(d) Denominations; Registration.................................................................. 13
SECTION 3. Covenants of the Company..................................................................... 13
(a) Compliance with Securities Regulations and Commission Requests............................... 13
(b) Filing of Amendments......................................................................... 14
(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
(h) Use of Proceeds.............................................................................. 15
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(i) Listing...................................................................................... 15
(j) Restriction on Sale of Securities............................................................ 15
(k) Reporting Requirements....................................................................... 16
SECTION 4. Payment of Expenses.......................................................................... 16
(a) Expenses..................................................................................... 16
(b) Termination of Agreement..................................................................... 17
SECTION 5. Conditions of Underwriters' Obligations...................................................... 17
(a) Effectiveness of Registration Statement...................................................... 17
(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........................................................................ 18
(f) Accountants' Comfort Letter.................................................................. 18
(g) Bring-down Comfort Letter.................................................................... 18
(h) Approval of Listing.......................................................................... 18
(i) Lock-up Agreements........................................................................... 18
(j) Consummation of the Torrington Acquisition................................................... 19
(k) Conditions to Purchase of Option Securities.................................................. 19
(l) Necessary Amendments......................................................................... 19
(m) Additional Agreements........................................................................ 20
(n) Additional Documents......................................................................... 20
(o) Termination of Agreement..................................................................... 20
SECTION 6. Indemnification.............................................................................. 20
(a) Indemnification of Underwriters.............................................................. 20
(b) Indemnification of Company, Directors and Officers........................................... 21
(c) Actions Against Parties; Notification........................................................ 22
(d) Settlement without Consent if Failure to Reimburse........................................... 22
SECTION 7. Contribution................................................................................. 23
SECTION 8. Representations, Warranties and Agreements to Survive Delivery............................... 24
SECTION 9. Termination of Agreement..................................................................... 24
(a) Termination; General......................................................................... 24
(b) Liabilities.................................................................................. 25
SECTION 10. Default by One or More of the Underwriters................................................... 25
SECTION 11. Parties...................................................................................... 26
SECTION 12. GOVERNING LAW AND TIME....................................................................... 26
SECTION 13. Effect of Headings........................................................................... 26
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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
Schedule D - List of Persons and Entities Subject to Lock-up.................................... Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel................................................ A-1
Exhibit B - Form of Letter of Company's Counsel................................................. B-1
Exhibit C - Form of Opinion of Company's In-house Counsel....................................... C-1
Exhibit D - Form of Lock-up Agreement........................................................... D-1
Exhibit E - Form of Letter Agreement between the Company and the Underwriters................... E-1
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THE TIMKEN COMPANY
(an Ohio corporation)
11,000,000 Shares of Common Stock
(No Par Value)
PURCHASE AGREEMENT
February -, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. INCORPORATED
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Timken Company, an Ohio corporation (the "Company"), confirms its
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇▇ ▇▇▇▇▇▇")
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 numbers of
shares of Common Stock, without par value, of the Company ("Common Stock") set
forth in said Schedule A, and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase all or any part of 1,165,000 additional shares
of Common Stock to cover over-allotments, if any. The aforesaid 11,000,000
shares of Common Stock (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the 1,165,0000 shares of Common Stock
subject to the option described in Section 2(b) hereof (the "Option Securities")
are hereinafter called, collectively, the "Securities."
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
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"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 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(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement 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 respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain 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 (and, if any Option Securities are purchased, at the Date
of Delivery), 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
statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Company in
3
writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement or Prospectus.
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 (and if any Option
Securities are purchased, at the Date of Delivery), did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. (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 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) Acquisition Agreement. The Company has delivered to
the Representatives a true and correct copy of the Acquisition
Agreement, together with all related agreements, all schedules and
exhibits thereto [and all letter agreements relating 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.
(xii) Authorization and Description of Securities. The
Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued, fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus and such description conforms to
the rights set forth in the instruments defining the same; no holder of
the Securities will be personally liable for any debts, obligations or
liabilities of the Company by reason of being such a holder; and the
issuance of the Securities is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(xiii) 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,
7
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 and the
consummation of the transactions contemplated herein, in the
Acquisition Agreement and in the Registration Statement (including,
without limitation, the concurrent offering by the Company of its
senior unsecured notes 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 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 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.
(xiv) 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
8
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.
(xv) 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.
(xvi) 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.
(xvii) 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 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.
(xviii) 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
9
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xix) 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 by the Company of its senior unsecured notes 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.
(xx) 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 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.
(xxi) 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
10
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.
(xxii) 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").
(xxiii) 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.
(xxiv) 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
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
11
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) Initial 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 per share set forth in Schedule B, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
[1,165,000] shares of Common Stock at the price per share set forth in Schedule
B, less an amount per share equal to any dividends or distributions declared by
the Company and payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial Securities upon notice by the Representatives to
the Company setting forth the number of Option Securities as to which the
several Underwriters are then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and date of
delivery (a "Date of Delivery") shall be determined by the Representatives, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Securities, subject in
each case to such adjustments as the Representatives in their discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇
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 [third] ([fourth], 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
12
days 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").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company, on each Date of Delivery as specified in the notice from the
Representatives to the Company.
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
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will 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 or the relevant Date of Delivery,
as the case may be.
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
13
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 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 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
14
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 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) Listing. The Company will use its best efforts to effect
and maintain the listing of the Securities on The New York Stock
Exchange and will file with the New York Stock Exchange all documents
and notices required by the New York Stock Exchange of companies that
have securities listed on the New York Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
15
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of any
share of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, whether any such swap or transaction
described in clause (i) or (ii) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold
hereunder, (B) any shares of Common Stock issued by the Company upon
the exercise of an option outstanding on the date hereof and referred
to in the Prospectus, (C) any shares of Common Stock issued or options
to purchase Common Stock granted in the ordinary course of business
pursuant to existing employee benefit plans of the Company referred to
or incorporated by reference in the Prospectus or pursuant to any plan
governed by Section 401(k) of the Internal Revenue Code relating to
employees of Torrington assumed or entered in to by the Company
pursuant to the Acquisition Agreement (and with respect to sales of any
shares of Common Stock issued pursuant to any such plan, the Company
shall be permitted to file a Registration Statement on Form S-8 under
the 1933 Act), (D) any shares of Common Stock issued or options to
purchase Common Stock granted in the ordinary course of business to any
non-employee director pursuant to any existing stock or incentive plan
or dividend reinvestment plan of the Company referred to or
incorporated by reference in the Prospectus or (E) the shares of Common
Stock issued to IR in accordance with the terms of the Acquisition
Agreement as described in the Prospectus.
(k) 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, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus relating to the Securities, and of the Prospectus and any
amendments or supplements thereto, (vii) the reproduction and delivery to the
Underwriters of copies of the Blue Sky Survey and any
16
supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the Securities, (ix) the fees and expenses incurred in connection
with the listing of the Securities on The New York Stock Exchange.
(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) (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 the form set forth in Exhibit C, together with signed or
reproduced copies of such opinion for each of the other Underwriters.
(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
17
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 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) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on The New York Stock Exchange, subject
only to official notice of issuance.
(i) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the
form of Exhibit D hereto signed by the persons listed on Schedule D
hereto.
18
(j) Consummation of the Torrington Acquisition. At Closing
Time, the Torrington Acquisition shall have been consummated in
accordance with the terms of the Acquisition Agreement.
(k) Conditions to Purchase of Option Securities. In the event
that the Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall
be true and correct as of each Date of Delivery and, at the relevant
Date of Delivery, the Representatives shall have received:
(i) Officers' Certificate. A certificate, dated
such Date of Delivery, of the President or a Vice President of
the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate
delivered at Closing Time pursuant to Section 5(d) hereof
remains true and correct as of such Date of Delivery.
(ii) Opinion of Counsel for Company. The
favorable opinion and letter of ▇▇▇▇▇ Day, counsel for the
Company, in the form set forth in Exhibit A and Exhibit B,
respectively, each dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iii) Opinion of General Counsel of the Company.
The favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice
President and General Counsel to the Company, in the form set
forth in Exhibit C, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Opinion of Counsel for Underwriters. The
favorable opinion of Shearman & Sterling, counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery in
form and substance reasonably satisfactory to the
Underwriters.
(v) Bring-down Comfort Letter. A letter from
each of Ernst & Young LLP and PricewaterhouseCoopers LLP, in
form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Representatives
pursuant to Section 5(f) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall
be a date not more than three days prior to such Date of
Delivery.
(l) 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
19
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.
(m) Additional Agreements. At the date of this Agreement, the
Representatives shall have received the letter agreement in the form
set forth in Exhibit E hereto of the Company with respect to certain
provisions of the Standstill and Voting Agreement (as defined in the
Acquisition Agreement).
(n) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with
such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company 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.
(o) Termination of Agreement. If any condition specified in
this Section shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of Option Securities, on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to
Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party
except as provided in Section 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;
20
(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 ▇▇▇▇▇▇▇
▇▇▇▇▇), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
21
Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 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.
22
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
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.
23
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 number of Initial 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.
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.
24
(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 or a Date of Delivery 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 number of Securities to be purchased on such date, 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 obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of
the number of Securities to be purchased on such date, (i) this
Agreement or (ii) with respect to any Date of Delivery which occurs
after Closing Time, the obligation of the Underwriters to purchase and
of the Company to sell the Option Securities to be purchased and sold
on such Date of Delivery, shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing Director; and
notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Senior Vice President and General
Counsel.
25
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.
26
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:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By_________________________
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
27
SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated................................................. -
▇.▇. ▇▇▇▇▇▇ Securities Inc................................................. -
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.......................................... -
▇▇▇▇▇▇▇▇ Investments Inc. ................................................. -
Wachovia Securities, Inc................................................... -
CIBC World Markets Corp.................................................... -
HSBC Securities (USA) Inc.................................................. -
SunTrust Capital Markets, Inc.............................................. -
BB&T Capital Markets, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc.............. -
----------
Total...................................................................... 11,000,000
==========
Sch A-1
SCHEDULE B
THE TIMKEN COMPANY
11,000,000 Shares of Common Stock
(No Par Value)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $-.
2. The purchase price per share for the Securities to be paid by
the several Underwriters shall be $-, being an amount equal to the initial
public offering price set forth above less $- per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
SCHEDULE C
MATERIAL SUBSIDIARIES OF THE TIMKEN COMPANY
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 C-1
SCHEDULE D
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
Name
▇.▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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