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EXHIBIT 1.1
Rubbermaid Incorporated
Debt Securities
Underwriting Agreement
[ ], 1996
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Rubbermaid Incorporated, a Company organized under the laws of Ohio (the
"Company"), proposes to issue and sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture
specified in Schedule I hereto (the "Indenture") between the Company and the
Trustee identified in such Schedule (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule
I hereto, then the terms "Underwriters" and "Representatives", as used herein
shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the
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form first used to confirm sales of the Securities is hereinafter referred to
as the "Basic Prospectus". The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Securities in the form first
used to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act") on or before the date of this Agreement or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be;
and any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under
the Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made in immediately available funds
to an account specified by the Company at the time and place set forth in
Schedule I hereto (or at such other time and place on the same or such other
date, not later than the fifth Business Day thereafter, as
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the Representatives and the Company may agree in writing). The time and date
of such payment and delivery with respect to the Securities are referred to
herein as the Closing Date. As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City.
Payment for the Securities will be made against delivery to, or to the
Representatives for the respective accounts of, such Underwriters of the
Securities registered in such names and in such denominations as the
Representatives shall request not later than two full Business Days prior to
the Closing Date with any transfer taxes payable in connection with transfer to
the Underwriters duly paid by the Company. The Securities will be represented
by one or more global certificates, which will be made available for inspection
by the Representatives by 1:00 P.M. on the Business Day prior to the Closing
Date at such place in New York City as the Representatives and the Company
shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and Prospectus
comply and, as amended or supplemented, if applicable, will comply, in all
material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"); each part of the Registration
Statement filed with the Commission pursuant to the Securities Act, when such
part became effective, did not contain, and each such part, as amended or
supplemented, if applicable, 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; and the
Prospectus did not, as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and the Prospectus, as
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amended or supplemented at the Closing Date, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to (i) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee, and
(ii) statements or omissions in the Registration Statement or the Prospectus
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, and none of such documents, when they were
filed with the Commission, contained an untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and will not
contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) the financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein;
(d) since the respective dates as of which information is given in the
Registration Statement and
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the Prospectus, there has not been any material adverse change, or any
development known by the Company (after diligent inquiry) involving a
prospective material adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth, incorporated
by reference or contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and its subsidiaries
taken as a whole;
(e) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(f) each of the Company's subsidiaries that constitutes a "Significant
Subsidiary" within the meaning of Rule 1-02 of Regulation S-X of the
Commission (the "Material Subsidiaries") has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the business, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole (a "Material Adverse Effect"); and all the
outstanding shares of capital stock of each Material Subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are
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owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and delivered by the
Company;
(h) the Securities have been duly authorized, and when issued and delivered
pursuant to this Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the Indenture has
been duly authorized and upon effectiveness of the Registration Statement
will have been duly qualified under the Trust Indenture Act and, when
executed and delivered by the Company and the Trustee, the Indenture will
constitute a valid and binding instrument of the Company; and the Securities
and the Indenture will conform to the descriptions thereof in the Prospectus;
(i) neither the Company nor any of its Material Subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Material Subsidiaries is a party or by which
it or any of them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the Securities and the
performance by the Company of all of its obligations under the Securities,
the Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which the Company or any of its Material
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Material Subsidiaries is subject, nor will any such
action result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or, except as would reasonably
not be expected to have a Material Adverse Effect, any applicable law or
statute or any order, rule or regulation of any
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court or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications as have been
obtained under the Securities Act, the Trust Indenture Act and as may be
required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) other than as set forth, incorporated by reference or contemplated in
the Prospectus, there are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of its
Material Subsidiaries is or may be a party or to which any property of the
Company or any of its Material Subsidiaries is or may be the subject which,
if determined adversely to the Company, could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect and, to
the best of the Company's knowledge, no such proceedings are threatened by
governmental authorities or threatened by others; and there are no contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required;
(k) each of the Company and its subsidiaries is in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health or the environment or imposing
liability or standards of conduct concerning any Hazardous Material
(collectively, "Environmental Laws"), except where such non-compliance with
Environmental Laws could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The term "Hazardous Material"
means (i) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
(ii) any "hazardous waste" as defined by the Resource Conservation and
Recovery Act, as amended, (iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl,
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and (v) any pollutant or contaminant or hazardous, dangerous, or toxic
chemical, material, waste or substance regulated under or within the meaning
of any other Environmental Law;
(l) each of the Company and its subsidiaries owns or possesses the right
to use the patents, patent licenses, trademarks, service marks, trade names,
copyrights and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures)
(collectively, the "Intellectual Property") reasonably necessary to carry on
the business conducted by each as conducted on the date hereof, except to the
extent that the failure to own or possess the right (through license or
otherwise) to use such Intellectual Property could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect, and,
except as set forth or incorporated by reference in the Registration
Statement and the Prospectus, neither the Company nor any subsidiary has
received any notice of infringement of asserted rights of others with respect
to any Intellectual Property, except for notices the content of which if
accurate could not, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect;
(m) KPMG Peat Marwick LLP, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Securities Act;
(n) the Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida); and
(o) the Company is not 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.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by the Representatives
pursuant to Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities;
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(b) to deliver to each Representative and counsel for the Underwriters, at
the expense of the Company, a conformed copy of the Registration Statement
(as originally filed) and each amendment thereto, in each case including
exhibits and documents incorporated by reference therein and, during the
period mentioned in paragraph (f) below, to each of the Underwriters as many
copies of the Prospectus (including all amendments and supplements thereto)
and documents incorporated by reference therein as the Representatives may
reasonably request;
(c) during the period mentioned in paragraph (f) below, before filing any
amendment or supplement to the Registration Statement or Prospectus, to
furnish to the Representatives a copy of any proposed amendment or supplement
to the Registration Statement or the Prospectus for review;
(d) to file promptly, subject to the provisions of paragraph (c) above, all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act during the period mentioned in paragraph (f)
below;
(e) during the period mentioned in paragraph (f) below, to advise the
Representatives promptly, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening of any proceeding
for that purpose, and (iv) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to prevent the
issuance of any such stop order or notification and, if issued, to obtain as
soon as possible the withdrawal thereof;
(f) if, during such period after the first date of the public offering of
the Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur as a result of
which it
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is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the Company, to the Underwriters and to the
dealers (whose names and addresses the Representatives will furnish to the
Company) to which Securities may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law;
(g) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so long
as reasonably required for distribution of the Securities and to pay all fees
and expenses (including the reasonable fees and disbursements of counsel to
the Underwriters) reasonably incurred in connection with such qualification
and in connection with the determination of the eligibility of the Securities
for investment under the laws of such jurisdictions as the Representatives
may designate; provided that the Company shall not be required to file a
general consent to service of process in any jurisdiction or to qualify as a
foreign corporation in any jurisdiction;
(h) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 of the Commission promulgated thereunder;
(i) so long as the Securities are outstanding, to furnish to the
Representatives upon request copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange;
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(j) during the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or guaranteed
by the Company which are substantially similar to the Securities without
prior written consent of the Representatives; and
(k) to pay all costs and expenses incident to the performance of its
obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any
expenses of the Trustee, (ii) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the Prospectus
and any preliminary prospectus (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with the
registration or qualification and determination of eligibility for investment
of the Securities under the laws of such jurisdictions as the Underwriters
may designate (including the reasonable fees of counsel for the Underwriters
and their disbursements), (iv) in connection with the listing of the
Securities on any stock exchange, (v) related to any filing with National
Association of Securities Dealers, Inc., (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental Blue Sky Memoranda
and any Legal Investment Survey and the furnishing to underwriters and
dealers of copies of the Registration Statement and the Prospectus, including
mailing and shipping, as herein provided and (vii) payable to rating agencies
in connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be subject
to the following conditions:
(a) the representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date as if made on and as of the
Closing Date and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date;
(b) the Prospectus shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
rules and
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regulations under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the satisfaction of the
Representatives;
(c) subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change or any
development involving a prospective material adverse change, in or affecting
the business, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth, incorporated by reference or contemplated in the
Prospectus, the effect of which in the judgment of the Representatives makes
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Prospectus;
(e) the Representatives shall have received on and as of the Closing Date a
certificate of an executive officer of the Company satisfactory to the
Representatives to the effect set forth in subsections (a) through (c) of
this Section and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement;
(f)(1) Xxxxx, Day, Xxxxxx & Xxxxx, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
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(i) this Agreement has been duly authorized, executed and delivered by
the Company;
(ii) the Securities have been duly authorized, executed and delivered
by the Company and, when duly authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits provided by the
Indenture;
(iii) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding instrument of the Company;
and the Indenture has been duly qualified under the Trust Indenture Act;
(iv) the statements in the Prospectus under "Description of Notes" and
"Description of Debt Securities", insofar as such statements constitute a
summary of the documents referred to therein, fairly present the information
called for with respect to such documents; and
(v)(A) no facts have come to such counsel's attention to cause them to
believe that (except for the financial statements included in the
Registration Statement and Prospectus as to which such counsel need express
no belief and except for that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form T-1) of the
Trustee and except with respect to information contained in the Registration
Statement or the Prospectus relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly
for use therein) the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (B) such counsel is of the opinion that
the Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statements included therein as
to which such counsel need express no opinion) comply as to form
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in all material respects with the requirements of the Securities Act and (C)
such counsel does not believe that (except for the financial statements
included therein as to which such counsel need express no belief and except
for that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee and except with
respect to information contained in the Registration Statement or the
Prospectus relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein) the
Registration Statement, as amended on the date of this Agreement, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, as amended or supplemented, if
applicable, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(2) Xxxxx X. Xxxxxx, General Counsel for the Company, shall have furnished
to the Representatives his written opinion, dated the Closing Date, in form
and substance satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not have a Material Adverse
Effect;
(iii) each of the Company's Material Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation with power
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and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification,
other than where the failure to be so qualified and in good standing would
not have a Material Adverse Effect; and all of the outstanding shares of
capital stock of each Material Subsidiary have been duly and validly
authorized and issued, are fully paid and non-assessable, and (except in the
case of foreign subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(iv) to the best of such counsel's knowledge after diligent inquiry,
other than as set forth, incorporated by reference or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or
threatened to which the Company or any of its Material Subsidiaries is or
may be a party or to which any property of the Company or its Material
Subsidiaries is or may be the subject which, if determined adversely to the
Company or such Material Subsidiaries, could individually or in the
aggregate reasonably be expected to have a Material Adverse Effect; to the
best of such counsel's knowledge, no such proceedings are threatened by
governmental authorities or others; and such counsel does not know of any
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required;
(v) neither the Company nor any of its Material Subsidiaries is, or with
the giving of notice or lapse of time or both would be, in violation of or
in default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its Material
Subsidiaries is a party or by which it or any of them or any of their
respective properties is
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bound, except for violations and defaults which individually and in the
aggregate are not material to the Company and its subsidiaries taken as a
whole or to the holders of the Securities; the issue and sale of the
Securities and the performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument known to such counsel to which the
Company or any of its Material Subsidiaries is a party or by which the
Company or any of its Material Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Material Subsidiaries is
subject, nor will any such action result in any violation of the provisions
of the Certificate of Incorporation, or the By-Laws of the Company or, except
as would reasonably not be expected to have a Material Adverse Effect, any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
Material Subsidiaries or any of their respective properties;
(vi) no consent, approval, authorization, order, registration or
qualification of or with any Ohio, New York, or federal court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation of the other transactions contemplated by
this Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained under
the Securities Act and the Trust Indenture Act and as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter;
(vii) the statements in the Prospectus incorporated by reference from
Item 3 of Part I of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994, in the Prospectus incorporated by reference
from Item 1 of Part II of the Company's Quarterly Reports on Form 10-Q, if
any, filed since such Annual Report,
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in the Prospectus incorporated by reference from Item 5 of the Company's
Current Reports on Form 8-K, if any, filed since such Annual Report, and in
the Registration Statement in Item 15, insofar as such statements constitute
a summary of the legal proceedings referred to therein, fairly present the
information called for with respect to such legal proceedings; and
(viii) such counsel is of the opinion that each document incorporated by
reference in the Registration Statement and the Prospectus (except for the
financial statements included therein as to which such counsel need express
no opinion) complied as to form when filed with the Commission in all
material respects with the Exchange Act.
In rendering the opinions set forth in this Section 6(f), such counsel may
rely (A) as to matters involving the application of laws other than the laws
of the United States and the States of New York and Ohio, to the extent such
counsel deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (reasonably satisfactory to Underwriters'
counsel) of other counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of
the Company and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate existence
or good standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the Underwriters
and they are justified in relying thereon. With respect to the matters to be
covered in subparagraph (1)(v) above, counsel may state their opinion and
belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendment or supplement
thereto and their discussions from time to time with officers, directors and
employees of the Company, KPMG Peat Marwick LLP, and you, concerning the
information contained in the Registration Statement and Prospectus and the
proposed responses to various items in Form S-3 but that such counsel (except
as specified in subparagraph (1)(iv) and (2)(vii)) has not independently
verified, is not passing upon, and does not assume any responsibility for the
accuracy, completeness or fairness of the
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information contained in the Registration Statement and Prospectus. With
respect to the matters to be covered in subparagraph (1)(ii), counsel may
state that their opinion is subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws now or
hereafter in effect relating to or limiting creditors' rights, (ii) general
principles of equity, whether such enforceability is considered in a
proceeding in equity or at law, and to the discretion of the court before
which any proceeding therefor may be brought, and (iii) public policy
considerations that may limit the rights of the Underwriters to obtain
certain remedies and to indemnification.
(g) on the Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Representatives letters, dated such date, in form and substance 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 in the Registration Statement and the Prospectus;
(h) the Representatives shall have received on and as of the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the Registration
Statement, the Prospectus and other related matters as the Representatives
may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters; and
(i) on or prior to the Closing Date, the Company shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or
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supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use therein; PROVIDED that the foregoing indemnity with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and, if required by law, a copy of the
Prospectus (as so amended or supplemented) shall not have been furnished to
such person at or prior to the written confirmation of the sale of such
Securities to such person.
Each Underwriter agrees, severally and not jointly to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person shall be entitled to
participate in the defense therein and, to the extent it wishes, to assume the
defense thereof and retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the Indemnifying
Person may designate in such proceeding and
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shall pay the reasonable fees and expenses of such counsel related to such
proceeding. Notwithstanding the above, in any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be, in the
reasonable judgment of the Indemnified Person, inadvisable due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Underwriters and such
control persons of Underwriters shall be designated in writing by the first of
the named Representatives on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration Statement
and such control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified
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Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above 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 the Underwriters on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the total underwriting
discounts and the commissions received by the Underwriters bear to the
aggregate public offering price of the Securities. The relative fault of the
Company on the one hand and the Underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty
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of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule II hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7 are in
addition to any liability which the Indemnifying Persons may otherwise have to
the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. The parties hereto agree that names of the Underwriters, the
stabilization legend on the inside front cover page of and the concessions
referenced in the third paragraph under the caption "Underwriting" in the
prospectus supplement specifically relating to the Securities constitute the
only information contained in the Registration Statement and the Prospectus
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein, as such
information is referred to in Sections 6(f)(1)(viii) and 7 hereof.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of or guaranteed by
the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of
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hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Representatives, is material and adverse and which, in
the judgment of the Representatives, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
10. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; PROVIDED that in no
event shall the principal amount of Securities that any Underwriter has agreed
to purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities
to be purchased, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its
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obligations under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company agrees to reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and expenses of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of Securities. Notwithstanding
the foregoing, the provisions of this Section 11 shall not apply to any
termination of this Agreement pursuant to Section 9 hereof.
12. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
13. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by the first of the named Representatives set forth
in Schedule I hereto alone on behalf of the Underwriters, and any such action
taken by the Representatives jointly or by the first of the named
Representatives set forth in Schedule I hereto alone shall be binding upon the
Underwriters. 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
given at the address set forth in Schedule I hereto. Notices to the Company
shall be given to it at [ ]; Attention: [ ].
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14. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
Very truly yours,
RUBBERMAID INCORPORATED
By:________________________
Name:
Title:
Accepted: [ ], 1996
[Lead Manager]
[Co-Manager]
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
By: [Lead Manager]
By: __________________________
Name:
Title:
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SCHEDULE I
Representatives: [ ]
[ ]
Trustee: [ ]
Underwriting Agreement
dated: [ ], 1996
Registration Statement
No.:
Title of Securities:
Aggregate principal
amount:
Purchase Price:
Price to Public:
Indenture: Indenture dated as of [ ],
1996 between the Company and [
], as Trustee.
Maturity:
Interest Rate:
Interest Payment Dates: June 1 and December 1
Optional Redemption
Provisions:
Sinking Fund
Provisions:
Closing Date and
Time of Delivery:
Closing Location: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices [ ]
to Underwriters:
27
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
-----------
[ ] . . . . . . . . . . . . . . . . . . . . . . . . . $
Total: . . . . . . . . . . . . . . . . . . . . . . . . . $
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