Exhibit 1.2
EXECUTION COPY
PRICING AGREEMENT
-----------------
March 10, 2004
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
UBS Securities LLC
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
The Xxxxx Company, a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated March 10, 2004 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedules II-A and
II-B hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein, and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Underwriters of the
Designated Securities pursuant to Section 12 of the Underwriting Agreement
and the address of the Representatives referred to in such Section 12 are
set forth at the end of Schedules II-A and II-B hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities,
in the form heretofore delivered to you is now proposed to be filed with
the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedules II-A and II-B hereto, the principal amount of Designated
Securities set forth opposite the name of such Underwriter in Schedule I
hereto.
If the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof (one for the Company and one
for each of the Representatives plus one for each counsel) and upon
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
Very truly yours,
THE XXXXX COMPANY
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Accepted as of the date hereof
X.X. XXXXXX SECURITIES INC.
By:/s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By:/s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Principal
UBS SECURITIES LLC
By:/s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By:/s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Associate Director
On behalf of themselves and each of the other Underwriters
SCHEDULE I
----------
Underwriter Principal Amount Principal Amount
----------- of 3.625% Notes due 2009 of 5.375% Notes due 2013
to be Purchased to be Purchased
--------------- ---------------
X.X. Xxxxxx Securities Inc. $ 86,800,000 $ 21,700,000
Banc of America Securities LLC $ 86,800,000 $ 21,700,000
UBS Securities LLC $ 86,800,000 $ 21,700,000
Deutsche Bank Securities Inc. $ 33,200,000 $ 8,300,000
Xxxxxxx, Sachs & Co. $ 33,200,000 $ 8,300,000
Xxxxxx Xxxxxxx & Co, Incorporated $ 33,200,000 $ 8,300,000
PNC Capital Markets, Inc. $ 10,000,000 $ 2,500,000
RBC Capital Markets Corporation $ 10,000,000 $ 2,500,000
Scotia Capital (USA) Inc. $ 10,000,000 $ 2,500,000
Wachovia Capital Markets, LLC $ 10,000,000 $ 2,500,000
------------- -------------
Total $ 400,000,000 $ 100,000,000
============= =============
SCHEDULE II-A
-------------
TITLE OF DESIGNATED SECURITIES:
3.625% Notes due 0000
XXXXXXXXX PRINCIPAL AMOUNT:
$400,000,000
PRICE TO PUBLIC:
99.688% of the principal amount of the 3.625% Notes due 2009, plus
accrued interest, if any, from Xxxxx 00, 0000
XXXXXXXX PRICE BY UNDERWRITERS:
99.088% of the principal amount of the 3.625% Notes due 2009, plus
accrued interest, if any, from March 15, 2004
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal or other same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), March 15, 2004
INDENTURE:
Indenture, dated as of February 24, 1995 (the "Indenture") between the
Company and X.X. Xxxxxx Trust Company, National Association (as
successor to Bank One, National Association, formerly known as the
First National Bank of Chicago), as Trustee
MATURITY:
March 15, 2009
INTEREST RATE:
3.625% per annum
INTEREST PAYMENT DATES:
March 15 and September 15 beginning on September 15, 2004
REDEMPTION PROVISIONS:
The 3.625% Notes due 2009 may be redeemed, in whole or in part, at any
time at the option of the Company, for a Make-Whole Price (as
described in the Prospectus Supplement dated the date hereof relating
to the 3.625% Notes due 2009).
SINKING FUND PROVISIONS:
None.
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
None.
DEFEASANCE PROVISIONS:
As set forth in the Indenture.
OTHER TERMS:
For purposes of the 3.625% Notes due 2009 and, insofar as used with
respect to the 3.625% Notes due 2009, the Indenture, (i) the
modifications set forth under the caption "Description of the
Notes--Covenants" in the prospectus supplement dated March 10, 2004
relating to the 3.625% Notes due 2009 (the "Prospectus Supplement"),
will apply to the covenants set forth under "Description of Debt
Securities--Certain Covenants--Limitation on the Incurrence of Debt"
in the Prospectus and (ii) the additional covenants set forth under
the caption "Description of the Notes--Covenants" in the Prospectus
Supplement will also apply.
For purposes of the 3.625% Notes due 2009 and, insofar as used with
respect to the 3.625% Notes due 2009, the Indenture, the definitions
set forth under the caption "Description of the Notes--Certain
Definitions" in the Prospectus Supplement will apply and supersede any
conflicting definitions contained in the Indenture.
For purposes of the 3.625% Notes due 2009 and, insofar as used with
respect to the 3.625% Notes due 2009, the Indenture, the modifications
set forth under the caption "Description of the Notes--Consolidation,
Merger, Sale, Conveyance and Lease" in the Prospectus Supplement will
apply to the provisions set forth under the caption "Description of
the Debt Securities--Consolidation, Merger, Sale, Conveyance and
Lease" in the Prospectus.
For purposes of the 3.625% Notes due 2009 and, insofar as used with
respect to the 3.625% Notes due 2009, the Indenture, the following
shall replace clause (5) of Section 501 of the Indenture:
(5) a default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money
borrowed by the Company (or by any Subsidiary, the repayment
of which the Company has guaranteed or for which the Company
is directly responsible or liable as obligor or guarantor)
(including a default with respect to Securities of any series
other than that series) having an aggregate principal amount
outstanding of at least $10,000,000, whether such indebtedness
now exists or shall hereafter be created, which default shall
have resulted from the failure to pay such indebtedness at its
maturity or shall have resulted in such indebtedness being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring
the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default"
hereunder; or
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
UBS Securities LLC
Address for Notices, etc.:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Grade Syndicate Desk-8th Floor
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
XX0-000-0X-00
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Grade Capital Markets Transaction Management
-and-
UBS Securities LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Fixed Income Syndicate
UNDERWRITERS COUNSEL:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
SCHEDULE II-B
-------------
TITLE OF DESIGNATED SECURITIES:
5.375% Notes due 0000
XXXXXXXXX PRINCIPAL AMOUNT:
$100,000,000
PRICE TO PUBLIC:
103.984% of the principal amount of the 5.375% Notes due 2013, plus
accrued interest from November 26, 2003 equal to 1.627% of such
principal amount (total initial offering price to public, including
such accrued interest, of 105.611% of such principal amount)]
PURCHASE PRICE BY UNDERWRITERS:
103.334% of the principal amount of the 5.375% Notes due 2013, plus
accrued interest from November 26, 2003, equal to 1.627% of such
principal amount (total purchase price to the Underwriters, including
such accrued interest, of 104.961% of such principal amount).
Accordingly, the aggregate purchase price payable by the Underwriters
to the Company for the 5.375% Notes due 2013 will be $103,334,000,
plus accrued interest from November 26, 2003 totaling $1,627,000,
which equals $104,961,000.
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal or other same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), March 15, 2004
INDENTURE:
Indenture, dated as of February 24, 1995 (the "Indenture") between the
Company and X.X. Xxxxxx Trust Company, National Association (as
successor to Bank One, National Association, formerly known as the
First National Bank of Chicago), as Trustee
MATURITY:
November 26, 2013
INTEREST RATE:
5.375% per annum
INTEREST PAYMENT DATES:
May 26 and November 26, beginning on May 26, 2004
REDEMPTION PROVISIONS:
The 5.375% Notes due 2013 may be redeemed, in whole or in part, at any
time at the option of the Company, for a Make-Whole Price (as
described in the Prospectus Supplement dated the date hereof relating
to the 5.375% Notes due 2013).
SINKING FUND PROVISIONS:
None.
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
None.
DEFEASANCE PROVISIONS:
As set forth in the Indenture.
OTHER TERMS:
For purposes of the 5.375% Notes due 2013 and, insofar as used with
respect to the 5.375% Notes due 2013, the Indenture, (i) the
modifications set forth under the caption "Description of the
Notes--Covenants" in the prospectus supplement dated March 10, 2004
relating to the 5.375% Notes due 2013 (the "Prospectus Supplement"),
will apply to the covenants set forth under "Description of Debt
Securities--Certain Covenants--Limitation on the Incurrence of Debt"
in the Prospectus and (ii) the additional covenants set forth under
the caption "Description of the Notes--Covenants" in the Prospectus
Supplement will also apply.
For purposes of the 5.375% Notes due 2013 and, insofar as used with
respect to the 5.375% Notes due 2013, the Indenture, the definitions
set forth under the caption "Description of the Notes--Certain
Definitions" in the Prospectus Supplement will apply and supersede any
conflicting definitions contained in the Indenture.
For purposes of the 5.375% Notes due 2013 and, insofar as used with
respect to the 5.375% Notes due 2013, the Indenture, the modifications
set forth under the caption "Description of the Notes--Consolidation,
Merger, Sale, Conveyance and Lease" in the Prospectus Supplement will
apply to the provisions set forth under the caption "Description of
the Debt Securities--Consolidation, Merger, Sale, Conveyance and
Lease" in the Prospectus.
For purposes of the 5.375% Notes due 2013 and, insofar as used with
respect to the 5.375% Notes due 2013, the Indenture, the following
shall replace clause (5) of Section 501 of the Indenture:
(5) a default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money
borrowed by the Company (or by any Subsidiary, the repayment
of which the Company has guaranteed or for which the Company
is directly responsible or liable as obligor or guarantor)
(including a default with respect to Securities of any series
other than that series) having an aggregate principal amount
outstanding of at least $10,000,000, whether such indebtedness
now exists or shall hereafter be created, which default shall
have resulted from the failure to pay such indebtedness at its
maturity or shall have resulted in such indebtedness being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such
acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring
the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default"
hereunder; or
Notwithstanding any provision of this Pricing Agreement, the
Underwriting Agreement or the Indenture to the contrary, the 5.375%
Notes due 2013 shall constitute part of the same series as the
$350,000,000 aggregate principal amount of 5.375% Notes due 2013
issued and sold by the Company on November 26, 2003 (the "Original
Notes"). Without limiting the generality of the preceding sentence,
the 5.375% Notes due 2013 to be issued and sold pursuant to the
Pricing Agreement shall bear the same CUSIP (000000XX0) number as the
Original Notes.
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
UBS Securities LLC
Address for Notices, etc.:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Grade Syndicate Desk-8th Floor
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
XX0-000-0X-00
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: High Grade Capital Markets Transaction Management
-and-
UBS Securities LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Fixed Income Syndicate
UNDERWRITERS COUNSEL:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
