EXHIBIT 1
▇▇▇▇▇▇ INDUSTRIES, INC.
$275,000,000
5.50% Senior Notes Due 2009
guaranteed by
▇▇▇▇▇▇ INDUSTRIES, LTD.
Underwriting Agreement
New York, New York
October 23, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
UBS Warburg LLC
As Representatives of the several Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Industries, Inc., a corporation organized under the laws of
Ohio (the "Company"), proposes to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, $275,000,000 principal amount of its 5.50% Senior
Notes Due 2009 (the "Securities"), to be issued under an Indenture dated as of
January 15, 1990 among the Company and The Chase Manhattan Bank (National
Association), as trustee, as supplemented by the First Supplemental Indenture,
dated as of May 15, 2002, the Second Supplemental Indenture, dated as of June
21, 2002, and the Third Supplemental Indenture, to be dated as of October 28,
2002, each between the Company, ▇▇▇▇▇▇ Industries, Ltd., a company existing
under the laws of Bermuda (the "Guarantor"), and JPMorgan Chase Bank, as trustee
(the "Trustee") (as so supplemented, the "Indenture"). The Securities will be
guaranteed on an unsecured basis by the Guarantor (the "Guarantee"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. Any reference herein to the Registration Statement, the
Basic Prospectus, any
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Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of such Basic Prospectus,
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed
to be incorporated therein by reference. Certain terms used herein are defined
in Section 17 hereof.
1. Representations and Warranties. The Company and the Guarantor
jointly and severally represent and warrant to, and agree with, each Underwriter
as set forth below in this Section 1.
(a) The Company and the Guarantor meet the requirements for use of
Form S-3 under the Act. The Company has prepared and filed with the
Commission a registration statement on Form S-3 (registration No.
333-75475) for registration under the Act of the Securities, and the
Company and the Guarantor have jointly filed a combined post-effective
amendment No. 1 to such registration statement and a registration
statement on Form S-3 (registration No. 333-99581), relating to the
registration under the Act of the related Guarantee of such Securities by
the Guarantor and containing a Basic Prospectus relating to the offering
and sale of the Securities (including the Guarantee). The Company may have
filed one or more amendments thereto, including a related Preliminary
Final Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: (1) after
the effective date of such registration statements, a final prospectus
supplement relating to the Securities (including the Guarantee) in
accordance with Rules 430A and 424(b), (2) prior to the Effective Date of
such registration statements, a further amendment to such registration
statements, including the form of final prospectus supplement or (3) a
final prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such registration statements, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included
in such registration statements and the Final Prospectus. As filed, such
final prospectus supplement or such amendment and form of final prospectus
supplement shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
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the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the Indenture
did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company and the Guarantor make no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement, or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company and the Guarantor by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
(c) Each of the Company, the Guarantor and their respective
significant subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized with requisite
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to be so qualified or have
such power or authority would not, individually or in the aggregate, have
a material adverse effect on the business, properties, financial position
or results of operations of the Guarantor and its subsidiaries taken as a
whole (a "Material Adverse Effect"). The subsidiaries listed in Schedule
II to this Agreement are the only significant subsidiaries of the
Guarantor or the Company, as defined by Rule 1-02 of Regulation S-X.
(d) The Guarantor has an authorized capitalization of 250 million
shares
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of Class A common stock, 150 million shares of Class B common stock and 10
million shares of preferred stock; and all the outstanding shares of
capital stock or other equity interests of the Company and each
significant subsidiary of the Guarantor or the Company have been duly
authorized and validly issued, are fully paid and nonassessable and all
shares that are owned directly or indirectly by the Guarantor are owned
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party.
(e) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described
or filed as required.
(f) The Company and the Guarantor have the corporate right, power
and authority to execute and deliver this Agreement, the Securities and
the Indenture (including the Guarantee set forth therein) and to perform
their respective obligations hereunder and thereunder.
(g) This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantor and constitutes a valid and binding
obligation of the Company and the Guarantor enforceable in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (collectively, the "Enforceability
Exceptions").
(h) The Indenture has been duly authorized by the Company and the
Guarantor and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and the Guarantor enforceable against the
Company and the Guarantor in accordance with its terms, subject to the
Enforceability Exceptions; and the Indenture has been duly qualified under
the Trust Indenture Act.
(i) The Securities have been duly authorized by the Company and,
when duly executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters pursuant
to this Agreement, will be duly and validly issued and outstanding will
constitute legal, valid and binding obligations of the Company enforceable
against the Company in accordance with its terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of the
Indenture. The Guarantee has been duly authorized by the Guarantor and,
when the Securities have been duly executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, will constitute a
legal, valid and binding obligation of the Guarantor enforceable against
the Guarantor in accordance with its terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the Indenture.
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(j) Each of this Agreement, the Securities and the Indenture
conforms in all material respects to the description thereof contained in
the Final Prospectus.
(k) Neither the Company nor the Guarantor is and after giving effect
to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, neither of them
will be, an "investment company" as defined in the Investment Company Act
of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained or
made under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities (including the Guarantee) by the Underwriters in the manner
contemplated herein and in the Final Prospectus.
(m) Neither the issue and sale of the Securities (including the
Guarantee) nor the performance of the terms and provisions hereof or the
consummation of any transactions herein contemplated will conflict with,
result in a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, the Guarantor or
any of its subsidiaries pursuant to, (i) the charter or bylaws of the
Company, the Guarantor or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which the Company, the Guarantor or any of its subsidiaries
is a party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree applicable
to the Company, the Guarantor or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company, the Guarantor or any
of its subsidiaries or any of its or their properties.
(n) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(o) The consolidated historical financial statements and schedules
of the Company and the Guarantor and its consolidated subsidiaries
included and incorporated by reference in the Final Prospectus and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company
and the Guarantor, as the case may be, as of the dates and for the periods
indicated, comply as to form with the applicable accounting requirements
of the Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected financial data
set forth under the caption "Selected Historical Consolidated Financial
Data"
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in the Final Prospectus and Registration Statement fairly present, on the
basis stated in the Final Prospectus and the Registration Statement, the
information included therein.
(p) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, the Guarantor or any of its subsidiaries or its or their property
is pending or, to the best knowledge of the Company or the Guarantor,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the consummation of
any of the transactions contemplated hereby or (ii) could reasonably be
expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto).
(q) Each of the Company, the Guarantor and its subsidiaries owns or
leases all such properties as are necessary to the conduct of its
operations as presently conducted.
(r) None of the Company, the Guarantor or any of its subsidiaries is
in violation or default of (i) any provision of its charter or bylaws,
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which it is a party or bound or to which its
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company, the Guarantor or any
of its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company, the Guarantor or any such subsidiary or any of its
properties, as applicable, except in the case of clauses (ii) and (iii)
above, for any such default or violation that would not, individually or
in the aggregate, have a Material Adverse Effect.
(s) Ernst & Young LLP, which has certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
(t) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Company or sale by the Company of
the Securities.
(u) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case
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in which the failure so to file would not have a Material Adverse Effect
and except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto)) and has paid all taxes required to
be paid by it and any other assessment, fine or penalty levied against it,
to the extent that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being contested in good
faith or as would not have a Material Adverse Effect and except as set
forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(v) No labor problem or dispute with the employees of the Company,
the Guarantor or any of its subsidiaries exists, or to the knowledge of
the Company or the Guarantor is threatened or imminent, that reasonably
could be expected to have a Material Adverse Effect, and neither the
Company nor the Guarantor is aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries' principal
suppliers, contractors or customers, that reasonably could be expected to
have a Material Adverse Effect.
(w) The Company, the Guarantor and each of its subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance and
fidelity or surety bonds insuring the Company, the Guarantor or any of its
subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Company, the Guarantor and
its subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the
Company, the Guarantor or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company, the
Guarantor nor any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company, the Guarantor nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(x) No subsidiary of the Company or the Guarantor is currently
prohibited, directly or indirectly, from paying any dividends to the
Company or the Guarantor, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company or the Guarantor
any loans or advances to such subsidiary from the Company or the Guarantor
or from transferring any of such subsidiary's property or assets to the
Company, the Guarantor or any other subsidiary of the Company or the
Guarantor, except as described in or contemplated by the Final Prospectus.
(y) Except as would not, individually or in the aggregate, have a
Material
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Adverse Effect, the Company, the Guarantor and its subsidiaries possess
all licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses. Neither the Company, the Guarantor
nor any such subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization or
permit which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(z) The Company, the Guarantor and each of its subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(aa) Neither the Company nor the Guarantor has taken, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of the Securities
or the Guarantee.
(bb) The Company, the Guarantor and its subsidiaries are (i) in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received and
are in compliance with all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their respective
businesses and (iii) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to
receive or be in compliance with required permits, licenses or other
approvals, or liability would not, individually or in the aggregate, have
a Material Adverse Effect and except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto). Except as set
forth in the Final Prospectus, neither the Company, the Guarantor nor any
of its subsidiaries has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, except in any suit, action, proceeding
or investigation that is not reasonably expected to have a Material
Adverse Effect.
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(cc) In the ordinary course of its business, the Company and the
Guarantor periodically review the effect of Environmental Laws on the
business, operations and properties of the Company, the Guarantor and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws, any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the
Company and the Guarantor have reasonably concluded that such associated
costs and liabilities would not, individually or in the aggregate, have a
Material Adverse Effect except as set forth in or contemplated in the
Final Prospectus (exclusive of any supplement thereto).
(dd) Each of the Company, the Guarantor and its subsidiaries has
fulfilled its obligations, if any, under the minimum funding standards of
▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act
of 1974, as amended ("ERISA") and the regulations and published
interpretations thereunder with respect to each "plan" (as defined in
Section 3(3) of ERISA and such regulations and published interpretations)
in which employees of the Company, the Guarantor and its subsidiaries are
eligible to participate and each such plan is in compliance with the
presently applicable provisions of ERISA and such regulations and
published interpretations, except where failure to so comply would not,
individually or in the aggregate, have a Material Adverse Effect. The
Company, the Guarantor and its subsidiaries have not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such plan under
Title IV of ERISA.
(ee) Except as would not, individually or in the aggregate, have a
Material Adverse Effect, the Company, the Guarantor and its subsidiaries
own, possess, license or have other rights to use, on reasonable terms,
all patents, patent applications, trade and service marks, trade and
service ▇▇▇▇ registrations, trade names, copyrights, licenses, inventions,
trade secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
the Company's and the Guarantor's business as now conducted or as proposed
in the Final Prospectus to be conducted. Neither the Company, the
Guarantor nor its subsidiaries has received any notice of any claim of
infringement of or conflict with any such rights of others that if
determined adversely to the Company, the Guarantor or its subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(ff) Except as disclosed in the Final Prospectus, (i) neither the
Company nor the Guarantor has any material lending or other relationship
with any bank or lending affiliate of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Holdings Inc.
or UBS Warburg LLC and (ii) the Company does not intend to use any of the
proceeds from the sale of
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the Securities hereunder to repay any outstanding debt owed to any
affiliate of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Holdings Inc. or UBS Warburg LLC.
Any certificate signed by any officer of the Company or the Guarantor and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company or the Guarantor, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 98.824% of the
principal amount thereof, the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 AM, New York City time, on October 28, 2002, or at such
time on such later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day Federal funds to an account
specified by the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company and the Guarantor agree with the several
Underwriters that:
(a) The Company and the Guarantor will use their reasonable best
efforts to cause the Registration Statement, if not effective at the
Execution Time, and any amendment thereof, to become effective. Prior to
the termination of the offering of the Securities, the Company and the
Guarantor will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless either the Company or the Guarantor has furnished you a
copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
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effective pursuant to Rule 430A, or filing of the Final Prospectus is
otherwise required under Rule 424(b), the Company or the Guarantor will
cause the Final Prospectus, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company or
the Guarantor will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company or the Guarantor of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company and the
Guarantor will use their reasonable best efforts to prevent the issuance
of any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event; (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance; and (3)
supply any supplemented Final Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Guarantor will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Guarantor and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
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(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an Underwriter or dealer may be required by
the Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company and/or the Guarantor will pay the expenses
of printing or other production of all documents relating to the offering.
(e) The Company and the Guarantor will arrange, if necessary, for
the qualification of the Securities (including the Guarantee) for sale
under the laws of such jurisdictions as the Representatives may designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc., in connection with its review of
the offering; provided that in no event shall the Company or the Guarantor
be obligated to: (1) qualify to do business in any jurisdiction where they
are not now so qualified, (2) take any action that would subject them to
service of process in suits, other than those arising out of the offering
or sale of the Securities (including the Guarantee), in any jurisdiction
in which they are not now so subject, or (3) subject themselves to
taxation in any jurisdiction in which they are not otherwise so subject.
(f) Neither the Company nor the Guarantor will, without the prior
written consent of the Representatives, offer, sell, contract to sell,
pledge, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company or any affiliate of the
Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in respect
of, any debt securities issued or guaranteed by the Company or the
Guarantor and having a maturity of more than one year from the date of
issue (other than the Securities and the Guarantee) or publicly announce
an intention to effect any such transaction for a period of 90 days
following the Execution Time.
(g) Neither the Company nor the Guarantor will take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of the Securities
or the Guarantee.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
and the Guarantor contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements
13
of the Company and the Guarantor made in any certificates pursuant to the
provisions hereof, to the performance by the Company and the Guarantor of their
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused Squire, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., counsel for the Company and the Guarantor, (ii) ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & Kempe, Bermuda counsel for the Guarantor and (iii) ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, General Counsel to the Company and the Guarantor, to have
furnished to the Representatives their opinions, dated the Closing Date
and addressed to the Representatives, to the effect set forth in Annexes
A, B and C, respectively, hereto.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
States of Ohio and New York or the Federal laws of the United States, to
the extent they deem proper and specified in such opinions, upon the
opinion of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and the Guarantor and public
officials.
(c) The Representatives shall have received from Simpson, Thacher &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities (including the Guarantee), the
Indenture, the Registration Statement, the Final Prospectus (together with
any supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company and the Guarantor shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
14
(d) The Company and the Guarantor shall have furnished to the
Representatives a certificate of the Company and the Guarantor, signed by
an executive officer of the Company and of the Guarantor who has specific
knowledge of the Company's and Guarantor's financial matters and who is
satisfactory to the Representatives, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantor in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company and the Guarantor have
complied with all the agreements and satisfied all the conditions on
their part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop-order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's or the Guarantor's
knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change or any development involving a prospective material
adverse change in or affecting the condition (financial or
otherwise), earnings, business or properties of the Guarantor and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Execution Time and at the Closing Date, Ernst & Young LLP
shall have furnished to the Representatives, at the request of the Company
and the Guarantor, letters, dated respectively as of the Execution Time
and as of the Closing Date and addressed to the Representatives, in form
and substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the Final
Prospectus, provided that the letter delivered on the Closing Date shall
use a "cut-off" date no more than three business days prior to the Closing
Date.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there
15
shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (e) of this Section 6 or (ii) any change,
or any development involving a prospective change, in or affecting the
condition (financial or otherwise), earnings, business or properties of
the Guarantor and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's or the Guarantor's debt
securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(h) Prior to the Closing Date, the Company and the Guarantor shall
have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company and the Guarantor in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Simpson, Thacher & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements
16
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and the
Guarantor jointly and severally agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that neither the Company nor the
Guarantor will be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company or the Guarantor by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein; provided, further, that with
respect to any untrue statement or omission or alleged untrue statement or
omission of material fact made in any Preliminary Final Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased the Securities concerned, to the extent that any
such loss, claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company or the
Guarantor had previously furnished copies of the Final Prospectus (excluding
documents incorporated by reference therein) to the Representatives, (x)
delivery of the Final Prospectus was required by the Act to be made to such
person, (y) the untrue statement or omission or alleged untrue statement or
omission of a material fact contained in the Preliminary Final Prospectus was
corrected in the Final Prospectus and (z) there was not sent or given to such
person, at or prior to the written confirmation of the sale of such securities
to such person, a copy of the Final Prospectus. This indemnity agreement will be
in addition to any liability that the Company and the Guarantor may otherwise
have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, the Guarantor, each of their respective
directors, each of their respective officers, and each person who controls the
Company or the Guarantor
17
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company and the Guarantor to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to the Company or the Guarantor by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability, which any Underwriter may otherwise have. The Company and the
Guarantor acknowledge that the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities and, under the heading
"Underwriting" or "Plan of Distribution", (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraphs related to
stabilization, over-allotment transactions, syndicate covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party, in any of which events such fees, costs and
18
expenses shall be reimbursed as they are incurred. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify each indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested that an indemnifying party reimburse the indemnified party
for fees and expenses of counsel as contemplated by this paragraph, the
indemnifying party shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by the indemnifying party of such request and (ii) the
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Guarantor and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company, the Guarantor and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantor on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company, the Guarantor and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Guarantor
on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and the
Guarantor shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by the Company, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or the Guarantor on the one hand
or the Underwriters on the other, the
19
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Guarantor and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company or the Guarantor within the meaning of
either the Act or the Exchange Act, each officer of the Company or the Guarantor
who shall have signed the Registration Statement and each director of the
Company or the Guarantor shall have the same rights to contribution as the
Company and the Guarantor, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter, the Company
or the Guarantor. In the event of a default by any Underwriter as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its liability, if
any, to the Company, the Guarantor and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
and the Guarantor prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Guarantor's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the
20
New York Stock Exchange shall have been suspended or limited or minimum prices
shall have been established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company and the Guarantor or their officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company, the Guarantor or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ Attention: General
Counsel; or, if sent to the Company or the Guarantor will be mailed, delivered
or telefaxed to ▇▇▇▇▇▇ Industries, Inc. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Vice President and Treasurer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms, which follow, when used in this
Agreement,
21
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective; provided that
the first such date and time shall be on September 19, 2002, which was the
effectiveness date of the combined registration statements described in
paragraph 1(a) above.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean, collectively, the combined
registration statement and post-effective amendment No. 1 to registration
statement referred to in paragraph 1(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any further post-effective amendment thereto
or any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement,
22
as the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule
430A.
"Rule 415," "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statements referred
to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Guarantor and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ Industries, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
▇▇▇▇▇▇ Industries, Ltd.
By: /s/ D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, III
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, III
Title: Vice President
UBS Warburg LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director - Capital Markets
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director - Capital Markets
For themselves and the other
Several Underwriters named in
Schedule I to the foregoing Agreement.
SCHEDULE I
PRINCIPAL AMOUNT
OF SECURITIES TO
UNDERWRITERS BE PURCHASED
------------ ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc...................... $ 96,250,000
UBS Warburg LLC............................... 96,250,000
Banc of America Securities LLC................ 16,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.................... 16,500,000
PNC Capital Markets, Inc...................... 16,500,000
The Royal Bank of Scotland plc................ 16,500,000
Wachovia Securities, Inc...................... 16,500,000
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Total................................... $275,000,000
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SCHEDULE II
Significant Subsidiaries
▇▇▇▇▇▇ Bussmann, Inc.
▇▇▇▇▇▇ Lighting, Inc.
▇▇▇▇▇▇ Power Systems, Inc.
▇▇▇▇▇▇ Power Tools, Inc.
ANNEX A
FORM OF OPINION OF SQUIRE, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. shall have furnished to the Underwriters
their written opinion, as counsel to the Company and the Guarantor, addressed to
the Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth below:
(a) The Company has been duly incorporated and is validly existing and in
good standing under the laws of Ohio.
(b) The Company has the corporate right, power and authority to execute
and deliver the Agreement, the Securities and the Indenture and to perform its
obligations under each such document.
(c) The Indenture has been duly authorized, executed and delivered by the
Company and the Guarantor, has been duly qualified under the Trust Indenture Act
and, assuming due execution and delivery thereof by the Trustee, constitutes a
valid and legally binding agreement of the Company and the Guarantor enforceable
against the Company and the Guarantor in accordance with its terms, subject to
the Enforceability Exceptions.
(d) The Securities have been duly authorized by the Company and, when
executed by the Company and duly authenticated by the Trustee as provided in the
Indenture and delivered to and paid for by the Underwriters as provided in the
Agreement, such Securities will be duly and validly issued and will constitute
valid and legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the Indenture.
(e) The Guarantee of the Securities has been duly authorized by the
Guarantor and, when the Securities have been duly executed, authenticated and
issued as provided in the Indenture and delivered and paid for as provided in
the Agreement, such Guarantee will be a valid and legally binding obligation of
the Guarantor, enforceable against the Guarantor in accordance with its terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits
of the Indenture.
(f) The Registration Statement has become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b); to
the knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or threatened; and the Registration Statement and the Final
Prospectus (other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion), as of the
Effective Date of the Registration Statement and the date of the Final
Prospectus, respectively, complied as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective rules
thereunder.
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(g) The Agreement has been duly authorized, executed and delivered
by the Company.
(h) The Securities and the Indenture conform in all material respects to
the applicable description contained in the Final Prospectus.
(i) No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the transactions
contemplated by the Agreement, except such as have been obtained under the Act
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities (including the
Guarantee) by the Underwriters in the manner contemplated in the Agreement and
in the Final Prospectus and such other approvals (specified in such opinion) as
have been obtained.
(j) Neither the Company nor the Guarantor is, and after giving effect to
the offering and sale of the Securities and the related Guarantee and the
application of the proceeds thereof as described in the Final Prospectus,
neither of them will be, an "investment company" as defined in the Investment
Company Act.
Such counsel shall also state that they have participated in conferences
with representatives of the Company and the Guarantor, representatives of their
independent accountants, representatives of the Underwriters and counsel for the
Underwriters, at which conferences the contents of the Registration Statement
and the Final Prospectus [and any amendment and supplement thereto, if
applicable] and related matters were discussed and, although such counsel assume
no responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Final Prospectus [or any
amendment or supplement thereto, if applicable] (except as expressly provided in
paragraph (h) above), such counsel has no reason to believe that the
Registration Statement, as of its Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Final Prospectus, as of its date or as of the date of this opinion, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (provided such counsel
need not express any view with respect to the financial statements or other
financial information contained or incorporated by reference in the Registration
Statement or the Final Prospectus).
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ANNEX B
FORM OF OPINION OF ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have furnished to the Underwriters their
written opinion, as Bermuda counsel to the Guarantor, addressed to the
Underwriters and dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, substantially to the effect set forth below:
(a) The Guarantor has been duly incorporated and is validly existing and
in good standing under the laws of Bermuda, is duly qualified to do business and
is in good standing in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and has the
corporate power and authority necessary to own or hold its properties and to
conduct the business in which it is engaged as described in the Final
Prospectus, except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, have a Material Adverse
Effect.
(b) The Guarantor has the requisite corporate right, power and authority
to execute and deliver the Indenture and the Agreement and to perform its
obligations thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery of the Indenture and the Agreement
and the consummation of the transactions contemplated thereby by Guarantor has
been duly and validly taken.
(c) The execution, delivery and performance by the Guarantor of the
Indenture and the Agreement do not and will not violate, conflict with or
constitute a default under (i) any requirement of any law or any regulation of
Bermuda or (ii) the constitutional documents of the Guarantor, and will not
create any charge or lien over the assets of the Guarantor.
(d) Except as otherwise provided in such opinion, no consent, license or
authorization of, filing with, or other act by or in respect of, any
governmental authority or court of Bermuda is required to be obtained by the
Guarantor in connection with the execution, delivery or performance by the
Guarantor of the Indenture and the Agreement, or to ensure the legality,
validity, admissibility into evidence or enforceability as to the Guarantor of
the Indenture and the Agreement.
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ANNEX C
FORM OF OPINION OF ▇▇▇▇▇▇ INDUSTRIES, INC.
General Counsel of the Company shall have furnished to the Underwriters
her written opinion, as counsel to the Company, addressed to the Underwriters
and dated the Closing Date, in form and substance reasonably satisfactory to the
Underwriters, substantially to the effect set forth below:
(a) The Company and each of the significant subsidiaries of the Company
have been duly incorporated and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are duly qualified
to do business and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have the requisite corporate power
and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged as described in the Final
Prospectus, except where the failure to be so qualified or have such power or
authority would not, individually or in the aggregate, have a Material Adverse
Effect.
(b) The Guarantor has an authorized capitalization of 250 million Class A
Common Shares, par value $0.01 per share, 150 million Class B Common Shares, par
value $0.01 per share, and 10,000 Preferred Shares, par value $0.01 per share;
all the outstanding shares of capital stock of the Company and each significant
subsidiary of the Company have been duly authorized and validly issued and are
fully paid and nonassessable; and, except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of significant subsidiaries
that are owned by the Company either directly or through wholly owned
subsidiaries are owned free and clear of any perfected security interest and, to
the knowledge of such counsel, after due inquiry, any other security interest,
claim, lien or encumbrance.
(c) The Company has the corporate right, power and authority to execute
and deliver the Agreement, the Securities and the Indenture and to perform its
obligations under each such document.
(d) To the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company, the Guarantor or any
of its subsidiaries or its or their property of a character required to be
disclosed in the Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required.
(e) Neither the execution, delivery and performance by the Company and the
Guarantor of the Agreement and the Indenture, nor the issuance and sale of the
Securities and the
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Guarantee, nor compliance by the Company and the Guarantor with the terms
thereof and the consummation of the transactions contemplated thereby will (i)
to the best knowledge of such counsel, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company, the Guarantor or any of its subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company, the Guarantor or any of its
subsidiaries is a party or bound or to which any of the property or assets of
the Company, the Guarantor or any of its subsidiaries is subject, (ii) result in
any violation of the provisions of the charter, by-laws or similar
organizational documents of the Company, the Guarantor or any of its
subsidiaries or (iii) result in the violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company, the Guarantor or its subsidiaries or any of its
or their properties, except, in the case of clause (i) above, for any such
conflict, breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(f) No holders of securities of the Company or the Guarantor have rights
to the registration of such securities under the Registration Statement.
Such counsel shall also state that she has participated in conferences
with representatives of the Company and the Guarantor and representatives of
their independent accountants, at which conferences the contents of the
Registration Statement and the Final Prospectus [and any amendment and
supplement thereto, if applicable] and related matters were discussed and,
although such counsel assumes no responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement and the
Final Prospectus [or any amendment or supplement thereto, if applicable], such
counsel has no reason to believe that the Registration Statement, as of its
Effective Date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Final Prospectus, as of its date
or as of the date of this opinion, contained or contains any untrue statement of
a material fact or omitted or omits to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (provided such counsel need not express any view with
respect to the financial statements or other financial information contained or
incorporated by reference in the Registration Statement or the Final
Prospectus).
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