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Exhibit 1.01
TERMS AGREEMENT
May 25, 1999
Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Executive Vice President and Treasurer
Dear Sirs:
We understand that Xxxxxxx Xxxxx Barney Holdings Inc., a
Delaware corporation (the "Company"), proposes to issue and sell 6,500,000 Units
($65,000,000 initial aggregate principal amount) of its Callable Equity Linked
Notes based upon the XxxXxxxxx.xxx Internet Sector Index Due May 30, 2006 (the
"Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, we, as underwriter (the "Underwriter"), offer
to purchase 6,500,000 Units ($65,000,000 initial aggregate principal amount) of
the Securities at a purchase price equal to 96.5% of the initial aggregate
principal amount thereof. The Closing Date shall be May 28, 1999 at 9:00 a.m.,
at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
The Securities shall have the following terms:
Title: Callable Equity Linked Notes based
upon the XxxXxxxxx.xxx Internet
Sector Index Due May 30, 2006.
Maturity: May 30, 2006.
Interest Rate: The Securities will bear no periodic
payments of interest. Unless the
Securities are redeemed by the
Company prior to maturity, Holders
thereof will be entitled to receive
at maturity the initial principal
amount thereof plus a payment, if
any, equal to the Supplemental
Redemption Amount (as defined in the
Prospectus Supplement dated May 25,
1999 relating to the Securities (the
"Prospectus Supplement")).
Interest Payment Date: Not applicable.
Regular Record Dates: Not applicable.
Initial Price To Public: 100% of the initial principal amount
thereof.
Redemption Provisions: The Company, in its sole discretion,
may redeem the Notes, in whole but
not in part, on any day on which
each of the American Stock Exchange,
Inc., the Philadelphia Stock
Exchange, Inc., the New York Stock
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Exchange, Inc. and the Nasdaq
National Market is open for trading
during any of the 30-day periods
beginning on May 28 in each of 2002,
2003, 2004 or 2005, at the
applicable call price per Unit as
set forth below:
Call Period Call Price
----------- ----------
30-day Period $17.50 per Unit
Beginning on May 28, 2002
30-day Period $20.00 per Unit
Beginning on May 28, 2003
30-day Period $22.50 per Unit
Beginning on May 28, 2004
30-day Period $25.00 per Unit
Beginning on May 28, 2005
Indenture: Senior Debt Indenture, dated as of
October 27, 1993, between the
Company and The Bank of New York, as
supplemented by the First
Supplemental Indenture, dated as of
November 28, 1997.
Trustee: The Bank of New York.
All the provisions contained in the document entitled "Xxxxxxx
Xxxxx Barney 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 May 28, 1999 against 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) Section 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 or sell, or publicly announce its intention to offer
or sell, any debt securities denominated in the currency in which the
Securities are denominated having a maturity of more than one year
(except under prior contractual commitments or pursuant to bank credit
agreements) during the period beginning the date of the Terms Agreement
and ending the business day following the Closing Date;"
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(C) A new Section 5(i) shall be added to the Basic Provisions and read as
follows: "Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special tax counsel to
the Company, shall have furnished to you an opinion, dated the Closing
Date, as to certain tax matters relating to the Securities, in a form
reasonably acceptable to the Underwriter;" and
(D) Xxxx Xxxxxxxxxxxx, General Counsel of the Company, shall have furnished
to the Underwriter an opinion, dated the Closing Date, as to the
matters referenced in Sections 5(c) and 5(d) of the Basic Provisions.
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.
Xxxx Xxxxxxxxxxxx, Esq. is counsel to the Company. Cleary,
Gottlieb, Xxxxx & Xxxxxxxx is special tax counsel to the Company and counsel to
the Underwriter.
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Please accept this offer no later than 9:00 p.m. on May 25,
1999, 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:
"We hereby accept your offer, set forth in the Terms
Agreement, dated May 25, 1999, to purchase the Securities on the terms set forth
therein."
Very truly yours,
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
ACCEPTED:
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President and Treasurer
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