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EXHIBIT 1.01
TERMS AGREEMENT
September 24, 2001
Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Dear Sirs:
We understand that Xxxxxxx Xxxxx Barney Holdings Inc., a New York
corporation (the "Company"), proposes to issue and sell $20,000,000 aggregate
principal amount of its Equity Linked Securities (ELKS(SM)) (2,000,000 ELKS)
based upon the common stock of Sun Microsystems, Inc. due October 2, 2002 (the
"Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, Xxxxxxx Xxxxx Xxxxxx Inc. (the "Underwriter")
offers to purchase 2,000,000 Securities in the principal amount of $20,000,000
at 97.5% of the principal amount. The Closing Date shall be September 27, 2001
at 9:00 a.m. at the offices of Citigroup Corporate Law Department, 000 Xxxx
Xxxxxx, 0xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Securities shall have the following terms:
Title: Equity Linked Securities (ELKS(SM)) based upon
the Common Stock of Sun Microsystems, Inc. due
October 2, 2002
Maturity: October 2, 2002
Coupon: Each ELKS will pay a total coupon of $1.3181 in
cash in two separate semi-annual installments
payable in part on each of two separate Interest
Payment Dates. The first coupon of $0.6681 will
be composed of $0.1315 of interest and a partial
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payment of an option premium in the amount of
$0.5366. The second coupon of $0.6500 will be
composed of $0.1280 of interest and a partial
payment of an option premium in the amount of
$0.5220.
Maturity Payment: Holders of the ELKS will be entitled to receive
at maturity the Maturity Payment (as defined in
the Prospectus Supplement dated September 24,
2001 relating to the Securities)
Interest Payment Dates: April 2, 2002 and October 2, 2002
Regular Record Dates: April 1, 2002 and October 1, 2002
Initial Price To Public: 100% of the principal amount thereof, plus
accrued interest from September 27, 2001 to date
of payment and delivery
Redemption Provisions: The Securities are not redeemable by the Company
prior to maturity.
Trustee: The Bank of New York
Indenture: Indenture, dated as of October 27, 1993, as
amended from time to time
All the provisions contained in the document entitled "Xxxxxxx Xxxxx
Xxxxxx Holdings Inc. - Debt Securities - Underwriting Agreement Basic
Provisions" and dated December 1, 1997 (the "Basic Provisions"), a copy of which
you have previously received, are, except as indicated below, herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Terms Agreement to the same extent as if the Basic Provisions had been set
forth in full herein. Terms defined in the Basic Provisions are used herein as
therein defined.
Basic Provisions varied with respect to this Terms Agreement:
(A) Notwithstanding the provisions set forth in Section 3 of the Basic
Provisions, the Company and the Underwriter hereby agree that the
Securities will be in the form of Book-Entry Notes and shall be
delivered on September 27, 2001 against
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payment of the purchase price to the Company by wire transfer in
immediately available funds to such accounts with such financial
institutions as the Company may direct.
(B) Paragraph 4(j) of the Basic Provisions shall be amended and restated as
follows: "The Company will not, without the consent of Xxxxxxx Xxxxx
Barney Inc., offer, sell, contract to offer or sell or otherwise
dispose of any securities, including any backup undertaking for such
securities, of the Company, in each case that are substantially similar
to the Securities or any security convertible into or exchangeable for
the ELKS or such substantially similar securities, during the period
beginning the date of the Terms Agreement and ending the Closing Date."
(C) Paragraph 5(g) of the Basic Provisions shall be amended and restated as
follows: "You shall have received on the Closing Date letters from
PricewaterhouseCoopers LLP and KPMG LLP covering the matters set forth
in Exhibit II hereto, with respect to the Registration Statement and
the Prospectus at the time of the Terms Agreement."
The Underwriter hereby agrees in connection with the underwriting of
the Securities to comply with the requirements set forth in any applicable
sections of Section 2720 to the By-Laws of the National Association of
Securities Dealers, Inc.
Xxxxx Xxxxx, Esq., is counsel to the Company. Cleary, Gottlieb, Xxxxx &
Xxxxxxxx is counsel to the Underwriter. Cleary, Gottlieb, Xxxxx & Xxxxxxxx is
special tax counsel to the Company.
Please accept this offer no later than 9:00 p.m. on September 24, 2001,
by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us, or by sending us a written acceptance in the
following form:
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"We hereby accept your offer, set forth in the Terms Agreement, dated
September 24, 2001, to purchase the Securities on the terms set forth therein."
Very truly yours,
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Managing Director
ACCEPTED:
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Executive Vice President and Treasurer
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