Exhibit 1.1
BLYTH INDUSTRIES, INC.
$150,000,000
7.90% Senior Notes due 2009
UNDERWRITING AGREEMENT
September 24, 1999
UNDERWRITING AGREEMENT
September 24, 1999
WARBURG DILLON READ LLC
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
c/o Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Blyth Industries, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Underwriters named in Schedule A annexed
hereto (the "Underwriters"), for whom Xxxxxxx Xxxxxx Read LLC ("WDR") and
Xxxxxxxxx, Lufkin& Xxxxxxxx Securities Corporation ("DLJ") are acting as co-lead
Managing Underwriters, $150,000,000 aggregate principal amount of its 7.90%
Senior Notes due 2009 (the "Senior Notes"). The Senior Notes are described in
the Prospectus Supplement which is referred to below.
The Senior Notes are to be issued pursuant to an indenture (the
"Indenture"), dated as of May 20, 1999, between the Company and First Union
National Bank, as trustee (the "Trustee"). The term "Indenture," as used herein,
includes the First Supplemental Indenture to be dated as of September 29, 1999,
between the Company and the Trustee establishing the form and terms of the
Senior Notes pursuant to Section 2.01 of the Indenture. Copies of the Indenture,
in substantially final form, have been delivered to each of the Underwriters.
The registration statement referred to below, as amended when it became
effective, including all documents filed as a part thereof or incorporated by
reference therein, and including information (if any) contained in a prospectus
subsequently filed with the Securities and Exchange Commission (the
"Commission") pursuant to Rule424(b) under the Securities Act of 1933, as
amended, and the rules and regulations thereunder (collectively called the
"Act") and deemed to be a part of the registration statement at the time of
effectiveness (the "Effective Date") pursuant to Rule430A under the Act and also
including any registration statement filed pursuant to Rule462(b) under the Act,
is herein called the "Registration Statement". "Basic Prospectus" means the
prospectus, including all documents incorporated therein by reference, contained
in the Registration Statement at the Effective Date. "Preliminary Final
Prospectus" means any preliminary prospectus supplement to the Basic Prospectus,
including all documents incorporated therein by reference, which describes the
Senior Notes and the offering thereof and is used prior to filing of the Final
Prospectus with the Commission. "Final Prospectus" means the prospectus
supplement, including all documents incorporated
therein by reference, relating to the Senior Notes that is first filed with the
Commission pursuant to Rule424(b) under the Act, together with the Basic
Prospectus included in the Registration Statement. "Execution Time" means the
date and time that this agreement is executed and delivered by the parties
hereto. For purposes of this Agreement, all references to the Registration
Statement, Preliminary Final Prospectus, Final Prospectus or to any amendment or
supplement to any of the foregoing, shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE: Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, the aggregate
principal amount of Senior Notes set forth opposite the name of such Underwriter
in Schedule A attached hereto in each case at a purchase price of 98.433% of the
principal amount thereof, plus accrued interest, if any, from September 29, 1999
to the time of purchase (as hereinafter defined). The Company is advised by you
that the Underwriters intend (i) to make a public offering of their respective
portions of the Senior Notes as soon after the Execution Time as in your
judgment is advisable and (ii) initially to offer the Senior Notes upon the
terms set forth in the Final Prospectus. You may from time to time increase or
decrease the public offering price after the initial public offering to such
extent as you may determine.
2. PAYMENT AND DELIVERY: Payment of the purchase price for the Senior
Notes shall be made to the Company by Federal funds wire transfer, against
delivery of the certificates for the Senior Notes to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on September 29, 1999 (unless another time not later than October 13,
1999 shall be agreed to by you and the Company or unless postponed in accordance
with the provisions of Section 8 hereof). The time at which such payment and
delivery are actually made is hereinafter sometimes called the "time of
purchase". Certificates for the Senior Notes shall be delivered to you in
definitive form in such names and in such denominations as you shall specify.
For the purpose of expediting the checking of the certificates for the Senior
Notes by you, the Company agrees to make such certificates available to you for
such purpose at least one full business day preceding the time of purchase. As
used herein "business day" shall mean a day on which the New York Stock Exchange
is open for trading.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY: The Company
represents and warrants to each of the Underwriters that:
(a) The Company meets the requirements for the use of Form S-3
under the Act. The Company has filed with the Commission, in accordance
with the provisions of the Act, a registration statement on Form S-3
(File No. 333-
77721), including a Basic Prospectus, which incorporates by reference
documents which the Company has filed or will file in accordance with
the provisions of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively called the "Exchange
Act"). The Company has filed one amendment thereto, a conformed copy of
which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The Company has used a
Preliminary Final Prospectus, which has previously been furnished to
you. The Company will timely file the Final Prospectus with the
Commission pursuant to Rule 415 and Rule 424(b) (2), (3) or (5) under
the Act. As filed, the Final Prospectus will conform in all material
respects to the applicable requirements of the Act in all substantive
respects and will be in the form thereof furnished to you prior to the
Execution Time.
(b) The Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any
Preliminary Final Prospectus, or instituting proceedings for that
purpose. Each Preliminary Final Prospectus, at the time of filing
thereof, conformed in all material respects to the applicable
requirements of the Act. On the Effective Date the Registration
Statement complied, and on the date hereof and on the date when first
filed with the Commission in accordance with Rule 424(b) under the Act
the Final Prospectus complied and will comply, in all material respects
with the applicable provisions of the Act, the Exchange Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). On
the Effective Date the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading. On the Effective Date and at the time of
purchase the Indenture complied and will comply in all material
respects with the applicable requirements of the Trust Indenture Act.
On the date hereof, on the date of any filing thereof pursuant to Rule
424(b) under the Act and at the time of purchase, the Final Prospectus
did not 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 light of the circumstances under which they were made, not
misleading. The documents incorporated by reference in the Registration
Statement and the Final Prospectus, at the time they were filed with
the Commission, complied in all material respects with the applicable
requirements of the Exchange Act and did not contain an 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, in
light of the circumstances under which they were made, not misleading.
Any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration Statement
have been so described or filed or incorporated by reference. In making
the representations and warranties in this Section 3(b), the Company
makes no representation or warranty as to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii)
the information with respect to the Underwriters contained in or
omitted from the Registration Statement or the Final Prospectus in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through WDR or DLJ or
their counsel specifically for use in connection with the preparation
of the Registration Statement or the Final Prospectus.
(c) As of July 31, 1999, the Company had an authorized
capitalization as set forth under the heading entitled "Actual" in the
section of the Final Prospectus entitled "Capitalization". All of the
issued and outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable, have been issued in compliance with all federal and
state securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar
right.
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Final Prospectus. The Company is duly
qualified to do business as a foreign corporation in good standing in
each jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except where
the failure to so qualify would not have a material adverse effect on
the business, properties, financial condition, results of operation or
prospects of the Company and its subsidiaries (as defined in Rule 405
under the Act) taken as a whole (a "Material Adverse Effect").
(e) The Company has no subsidiaries (as defined in Rule 405
under the Act) other than the entities identified in Exhibit 21 to the
Company's Annual Report on Form 10-K for the fiscal year ended January
31, 1999 (collectively, the "Subsidiaries"). Other than the
Subsidiaries, the Company does not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity that are material to the Company
and its Subsidiaries taken as a whole. Each Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Final Prospectus. Each Subsidiary that is a significant
subsidiary (as defined in Rule 405 of the Act, each referred to herein
as a "Significant Subsidiary") is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where
the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to so
qualify would not have a Material Adverse Effect. All of the
outstanding shares of capital stock of each Significant Subsidiary have
been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company subject to no security
interest, other encumbrance or adverse claims. There are no outstanding
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Significant
Subsidiaries.
(f) Complete and correct copies of the certificates of
incorporation and of the bylaws of the Company and the Significant
Subsidiaries have previously been made available to you and no changes
therein will be made subsequent to the Execution Time and prior to the
time of purchase. Neither the Company nor any Significant Subsidiary is
in breach of or in default under, nor has any event occurred that with
notice or lapse of time or both would result in any breach of or
constitute a default under, its respective charter or by-laws or in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any
lease, contract or other agreement or instrument, to which the Company
or any of its Subsidiaries is a party or by which any of them or any of
their properties is bound except for such breaches or defaults as would
not have a Material Adverse Effect.
(g) The execution, delivery and performance of this Agreement
and the Indenture and the issuance of the Senior Notes and consummation
of the transactions contemplated hereby and thereby will not conflict
with, or result in any breach of or constitute a default under, nor
constitute an event that with notice or lapse of time or both would
result in any breach of or constitute a default under, any provisions
of the charter or by-laws of the Company or any Subsidiary or under any
provision of any license, indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument, to which the Company or any
Subsidiary is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local
or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any Subsidiary.
(h) The Indenture has been duly and validly authorized by the
Company and when duly executed and delivered by the Company, will be a
legal, valid and binding obligation of the Company enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting creditors' rights
generally and general principles of equity. The Indenture, when
executed and delivered, will conform in all material respects to the
description thereof contained in the Registration Statement and the
Final Prospectus.
(i) The Senior Notes have been duly and validly authorized for
issuance and sale to the Underwriters by the Company and, when issued
and delivered by the Company against payment by the Underwriters and
duly authenticated by the Trustee in accordance with the terms of this
Agreement and the Indenture, will constitute legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws affecting creditors' rights generally and general
principles of equity. The Senior Notes, when issued, authenticated and
delivered, will conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Final
Prospectus.
(j) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting creditors' rights
generally and general principles of equity.
(k) No approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Senior Notes or the consummation by
the Company of the transactions as contemplated hereby other than
registration of the Senior Notes under the Act, qualification of the
Indenture under the Trust Indenture Act and any necessary qualification
under the securities or blue sky laws of the various jurisdictions in
which the Senior Notes are being offered by the Underwriters or under
the rules and regulations of the National Association of Securities
Dealers, Inc. ("NASD").
(l) PricewaterhouseCoopers LLP and Xxxxx Xxxxxxxx LLP, whose
reports on the consolidated financial statements of the Company and its
Subsidiaries are filed with the Commission as part of the Registration
Statement and Final Prospectus, are independent public accountants as
required by the Act.
(m) The Company and each Significant Subsidiary has all
necessary licenses, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to
conduct its respective business, the failure to have, make or obtain
which would have a Material Adverse Effect. Neither the Company nor any
Subsidiary is in violation of, or in default under, any such license,
authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment
applicable to the Company or any of its Subsidiaries, the effect of
which could have a Material Adverse Effect.
(n) All legal or governmental proceedings, contracts, leases
or documents of a character required to be described in the
Registration Statement or the Final Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or filed
as required or incorporated by reference.
(o) Other than as set forth in the Basic Prospectus, the
Preliminary Final Prospectus or the Final Prospectus, there are no
actions, suits, claims, investigations or proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any of
its Subsidiaries or any of their respective officers is a party or of
which any of their respective properties is the subject, at law or in
equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, which could result in a judgment, decree or order having a
Material Adverse Effect or preventing consummation of the transactions
contemplated hereby.
(p) The audited financial statements included in the
Registration Statement and the Final Prospectus present fairly the
consolidated financial position of the Company and its Subsidiaries as
of the dates indicated and the consolidated results of operations and
changes in financial position of the Company and its Subsidiaries for
the periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved.
(q) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, there
has not been: (i) any material adverse change, or any development
which, in the Company's reasonable judgment, is likely to cause a
material adverse change, in the business, properties or assets
described or referred to in the Registration Statement and the Final
Prospectus, or the results of operations or financial condition of the
Company and its Subsidiaries taken as a whole; (ii) any transaction
that is material to the Company or its Subsidiaries taken as a whole,
except transactions in the ordinary course of business; (iii) any
obligation, direct or contingent, that is material to the Company and
its Subsidiaries taken as a whole, incurred by the Company or its
Subsidiaries, except obligations incurred in the ordinary course of
business; (iv) any material change in the capital stock or outstanding
indebtedness of the Company or its Subsidiaries; or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of
the Company. Neither the Company nor its Subsidiaries has any material
contingent obligation that is required to be disclosed in the
Registration Statement and the Final Prospectus and is not so
disclosed.
4. CERTAIN COVENANTS OF THE COMPANY: The Company agrees with the
several Underwriters that:
(a) Prior to the termination of the offering of the Senior
Notes, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus subsequent to the
date hereof unless the Company has furnished a copy to you for your
review for a reasonable time prior to filing, and will not file any
such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company 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)
under the Act within the time period prescribed and will provide
evidence satisfactory to you of such timely filing. The Company
promptly will advise you and, if requested by you, confirm such advice
in writing (i) when, prior to termination of the offering of the Senior
Notes, any amendment to the Registration Statement shall have been
filed or shall become effective, (ii) of any request by the Commission
for any amendment of the Registration Statement or supplement to the
Final 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 of any stop order
suspending the use of the Final Prospectus or the institution or
threatening of any proceeding for that purpose and (iv) of the issuance
by any state securities commission or other regulatory authority of any
stop order or order suspending the qualification of any of the Senior
Notes for sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose by any state securities commission or
other regulatory authority. The Company shall use its commercially
reasonable best efforts to prevent the issuance of such stop order and,
if issued, the Company shall use its commercially reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) If, at any time when a prospectus relating to the Senior
Notes is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would include
an 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, the
Company shall promptly notify the Underwriters of such event and
promptly prepare and file with the Commission, subject to the first
sentence of Section 4(a), an appropriate amendment or supplement which
will correct such statement or omission or effect such compliance.
(c) The Company will furnish such information as may be
required and otherwise reasonably cooperate in qualifying the Senior
Notes for offering and sale under the securities or blue sky laws of
such states as you may designate and to maintain such qualifications in
effect as long as required for the distribution of the Senior Notes.
The Company, however, will not be required to
qualify as a foreign corporation or to consent to the service of
process under the laws of any such state (except service of process
with respect to the offering and sale of the Senior Notes).
(d) The Company will, as soon as practicable after the
Execution Time, and thereafter from time to time, cause to be furnished
to the Underwriters and those persons identified by the Underwriters,
without charge, as many copies of the Final Prospectus (or of the Final
Prospectus as amended or supplemented if the Company shall have made
any amendments or supplements thereto after the Execution Time) as the
Underwriters may reasonably request for the purposes contemplated by
the Act. The Company consents to the use of the Preliminary Final
Prospectus, the Final Prospectus and any amendments or supplements
thereto by the Underwriters in connection with the public sale of the
Senior Notes. If applicable, the Final Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Subject to the first sentence of Section 4(a), the Company
will file promptly all reports and any definitive proxy or information
statement required to be filed by the Company with the Commission in
order to comply with the Exchange Act subsequent to the Execution Time
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Senior Notes and will
notify you of such filing.
(f) If necessary or appropriate, the Company will file a
registration statement pursuant to Rule 462(b) under the Act.
(g) The Company will furnish to you and, upon request, to each
of the other Underwriters for a period of three years from the date of
this Agreement, copies of (i) any reports or other communications which
the Company sends to its stockholders and (ii) such other reports and
information as you may reasonably request in writing.
(h) The Company will make generally available to its security
holders, and deliver to you, an earnings statement of the Company
(which will satisfy the provisions of Section11(a) of the Act) covering
a period of 12 months beginning after the Effective Date as soon as is
reasonably practicable after the termination of such 12-month period
but not later than January 31, 2001.
(i) The Company will furnish to you four signed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein). The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will
be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(j) The Company will furnish to you as early as practicable
prior to the time of purchase, but no later than two business days
prior thereto, a copy of the latest available unaudited interim
consolidated financial statements, if any, of the Company and its
Subsidiaries which have been read by the Company's independent
certified public accountants, as stated in their letter to be furnished
pursuant to Section 6(b) hereof.
(k) The Company will apply the net proceeds from the sale of
the Senior Notes in the manner set forth under the caption "Use of
Proceeds" in the Final Prospectus.
(l) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, the Company will pay all reasonable costs, expenses, fees
and taxes (other than fees and disbursements of counsel for the
Underwriters except as set forth under Section 5 hereof and clauses
(iv) and (vi) below) in connection with: (i) the preparation by the
Company and filing of the Registration Statement, each Preliminary
Final Prospectus, the Final Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing
and shipment); (ii) the preparation, issuance, execution,
authentication and delivery of the Senior Notes; (iii) the producing,
word processing or printing of this Agreement, any dealer agreements,
any Powers of Attorney and any other closing documents (including
compilations thereof), the Indenture, and the reproduction or printing
and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers (including costs of mailing and
shipment); (iv) the qualification of the Senior Notes for offering and
sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the reasonable legal
fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers;
(v) any fees payable to investment rating agencies with respect to the
Senior Notes; (vi) any filing for review of the public offering of the
Senior Notes by the NASD; and (vii) the performance of the Company's
other obligations hereunder.
(m) The Company will do and perform all things required to be
done and performed under this Agreement prior to or after the Execution
Time and use its best efforts to satisfy all conditions precedent on
its part to deliver the Senior Notes.
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES: If the Senior Notes are not
delivered for any reason other than the termination of this Agreement pursuant
to Section 8 hereof or the default by one or more of the Underwriters in its or
their respective obligations hereunder, the Company, in addition to paying the
amounts described in Section 4(l) hereof, will reimburse the Underwriters for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS: The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase
an opinion of Xxxxx X. Xxxxxxx, Esq., Vice President, Secretary and
General Counsel for the Company, addressed to the Underwriters and
dated the time of purchase, with reproduced copies thereof for each of
the other Underwriters and in form satisfactory to Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and
the Final Prospectus and to issue, sell and deliver the Senior
Notes as herein contemplated. The Company is duly qualified to
do business as a foreign corporation in good standing in each
jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a
Material Adverse Effect.
(ii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Registration Statement and the Final
Prospectus. Each Significant Subsidiary is duly qualified to
do business as a foreign corporation and is in good standing
in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such
qualification, except where the failure to so qualify would
not have a Material Adverse Effect. All of the outstanding
shares of capital stock of each Significant Subsidiary have
been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company subject to no
perfected security interest. There are no outstanding options,
warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests
in the Significant Subsidiaries.
(iii) As of July 31, 1999, the Company had an
authorized capitalization as set forth in the Registration
Statement and the Final Prospectus. All of the issued and
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable and were not issued in violation of any
preemptive right, resale right, right of first refusal or
similar right.
(iv) To the best of such counsel's knowledge, neither
the Company nor any Significant Subsidiary is in breach of or
in default under, nor has any event occurred that with notice
or lapse of time or both would result in any breach of or
constitute a default under, its respective charter or by-laws
or in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or
other agreement or instrument, to which the Company or any of
its Significant Subsidiaries is a party or by which any of
them or any of their properties is bound except for such
breaches or defaults as would not have a Material Adverse
Effect.
(v) To the best of such counsel's knowledge, the
Company and each Significant Subsidiary has all necessary
licenses, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local
or foreign law, regulation or rule, and has obtained all
necessary authorizations, consents and approvals from other
persons, in order to conduct its respective business the
failure to have, make or obtain which would have a Material
Adverse Effect. To the best of such counsel's knowledge,
neither the Company nor any Significant Subsidiary is in
violation of, or in default under, any such license,
authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order
or judgment applicable to the Company or any of its
Subsidiaries, the effect of which could have a Material
Adverse Effect.
(vi) The execution, delivery and performance of this
Agreement and the Indenture and the issuance of the Senior
Notes and consummation of the transactions contemplated hereby
and thereby will not conflict with, or result in any breach of
or constitute a default under, nor constitute any event that
with notice or lapse of time or both would result in any
breach of or constitute a default under, (A) any provision of
the charter or by-laws of the Company or any Significant
Subsidiary or (B) any provision of any license, indenture,
mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or
other
agreement or instrument, known to such counsel to which the
Company or any Significant Subsidiary is a party or by which
any of them or their respective properties may be bound or
affected, or, to the knowledge of such counsel, under any
federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any
Significant Subsidiary.
(b) The Company shall furnish to you an opinion of Xxxx, Xxxxx
& Xxxxxxx LLP stating that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and
the Final Prospectus and to issue, sell and deliver the Senior
Notes as herein contemplated.
(ii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is the
legal, valid and binding agreement of the Company enforceable
in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity.
(iv) The Senior Notes have been duly authorized by
the Company and when executed and delivered by the Company and
authenticated in accordance with the Indenture and delivered
to and paid for by the Underwriters will constitute legal,
valid and binding obligations of the Company in accordance
with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally and
general principles of equity.
(v) The Senior Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Final Prospectus.
(vi) No approval, authorization, consent or order of
or filing with any national, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the
issuance and sale of the Senior Notes or the consummation by
the Company of the transactions as contemplated hereby other
than registration of the Senior Notes under the Act,
qualification of the Indenture under the Trust Indenture Act
and any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Senior
Notes are being offered by the Underwriters or under the rules
and regulations of the National Association of Securities
Dealers, Inc.
("NASD").
(vii) The Company meets the requirements for the use
of Form S-3 under the Act. The Registration Statement has
become effective under the Act and, to the best of such
counsel's knowledge, no stop order proceedings with respect
thereto are pending or threatened under the Act. Any required
filing of the Final Prospectus pursuant to Rule 424 under the
Act has been made in the manner and within the time period
required by such Rule 424.
(viii) The Registration Statement and the Final
Prospectus (except as to the financial statements and
schedules and other financial and statistical data contained
or incorporated by reference therein and the Trustee's
Statement of Eligibility and Qualification on Form T-1, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the Trust Indenture Act.
(ix) To the best of such counsel's knowledge, there
are no contracts, licenses, agreements, leases or documents of
a character which are required to be filed as exhibits to the
Registration Statement or to be summarized or described in the
Final Prospectus which have not been so filed, summarized or
described. Any statutes or regulations that are required to be
described in the Registration Statement or the Final
Prospectus have been so described or incorporated therein by
reference. To the best of such counsel's knowledge, there are
no actions, suits, claims, investigations or proceedings
pending or threatened or contemplated to which the Company or
any of its Subsidiaries is subject or of which any of their
respective properties is the subject at law or in equity
before or by any Federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency
which are required to be described in the Final Prospectus but
are not so described.
(x) The documents incorporated by reference in the
Registration Statement and the Final Prospectus, at the time
they were filed with the Commission, (except as to the
financial statements and schedules and other financial and
statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion)
complied in all material respects with the requirements of the
Exchange Act.
(xi) The Indenture has been duly qualified under the
Trust Indenture Act.
(xii) The Company will not, upon consummation of the
transactions contemplated by this Agreement, be an "investment
company," or a "promoter" or "principal underwriter" for, a
"registered investment company," as such terms are defined in
the Investment Company Act of 1940, as amended.
(xiii) Such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the
contents of the Registration Statement and Final Prospectus
were discussed, and although such counsel is not passing upon
and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or Final Prospectus (except as and to
the extent stated in clauses (v) and (ix) above), on the basis
of the foregoing nothing has come to the attention of such
counsel that causes them to believe that the Registration
Statement or any amendment thereto at the time such
Registration Statement or amendment 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, or that the Final
Prospectus or any supplement thereto at the date of such Final
Prospectus or such supplement, and at all times up to and
including the time of purchase contained an untrue statement
of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion
with respect to the financial statements and schedules and
other financial and statistical data included in the
Registration Statement or Final Prospectus or with respect to
the Trustee's Statement of Eligibility and Qualification on
Form T-1).
(c) You shall have received from PricewaterhouseCoopers LLP
letters dated, respectively, as of the date of this Agreement and the
time of purchase, and addressed to the Underwriters (with reproduced
copies for each of the other Underwriters) in substantially the form
attached hereto as Exhibit B as approved by WDR, DLJ and
PricewaterhouseCoopers LLP.
(d) You shall have received at the time of purchase the
favorable opinion of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the
Underwriters, dated the time of purchase.
(e) Prior to the time of purchase: (i) no stop order with
respect to the effectiveness of the Registration Statement shall have
been issued under the Act or proceedings initiated under Section 8(d)
or 8(e) of the Act; (ii) the Registration Statement and all amendments
thereto, or modifications thereof, if any, shall not contain an 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 (iii) the Final Prospectus and all amendments or
supplements thereto, or modifications thereof, if any, shall not
contain an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(f) Between the time of execution of this Agreement and the
time of purchase (i) no material and unfavorable change, financial or
otherwise (other than as referred to in the Registration Statement and
the Final Prospectus), in the business, condition or prospects of the
Company and its Subsidiaries taken as a whole shall occur or become
known and (ii) no transaction that is material and unfavorable to the
Company shall have been entered into by the Company or any of its
Significant Subsidiaries.
(g) The Company will, at the time of purchase, deliver to you
a certificate signed by two of its executive officers to the effect
that (i) the representations and warranties of the Company set forth in
this Agreement are true and correct as of such date, (ii) the Company
has performed such of its obligations under this Agreement as are to be
performed at or before the time of purchase and (iii) the conditions
set forth in Section 6(e) and (f) have been met.
(h) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Final Prospectus as of
the time of purchase as you may reasonably request.
(i) Between the time of execution of this Agreement and the
time of purchase there shall not have occurred any downgrading, nor
shall any notice or announcement have been given or made of (i) any
intended or potential downgrading or (ii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization," as that term
is defined in Rule436(g)(2) under the Act.
7. TERMINATION: The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of you or any group
of Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Senior Notes if, since the time of execution of
this Agreement or the respective dates as of which information is given in the
Registration Statement and Prospectus: (y) there
has been any material adverse and unfavorable change, financial or otherwise
(other than as referred to in the Registration Statement and Final Prospectus),
in the operations, business, condition or prospects of the Company and its
Subsidiaries taken as a whole, which would, in your judgment or in the judgment
of such group of Underwriters, make it impracticable to market the Senior Notes;
or (z) there shall have occurred any downgrading, or any notice shall have been
given of (i) any intended or potential downgrading or (ii) any review or
possible change that does not indicate an improvement in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any "nationally
recognized statistical rating organization," as that term is defined in Rule
436(g)(2) under the Act or if, at any time prior to the time of purchase,
trading in securities on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or limitations
or minimum prices shall have been established on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market, or if a banking
moratorium shall have been declared either by the United States or New York
State authorities, or if the United States shall have declared war in accordance
with its constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on the financial markets of
the United States as, in your judgment or in the judgment of such group of
Underwriters, to make it impracticable to market the Senior Notes.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly.
If the sale to the Underwriters of the Senior Notes, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply with any of the terms of this Agreement, the Company
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(l), 5 and 9), and the Underwriters shall be
under no obligation or liability to the Company under this Agreement (except to
the extent provided in Section 9) or to one another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS: Subject to Sections 6 and 7,
if any Underwriter shall default in its obligation to take up and pay for the
Senior Notes to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7) and if the aggregate principal amount of Senior Notes which all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed 10% of the aggregate principal amount of Senior Notes, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate number of Senior Notes they are obligated to purchase pursuant to
Section 1) the aggregate principal amount of Senior Notes agreed to be purchased
by all such defaulting Underwriters, as hereinafter provided. Such Senior Notes
shall be taken up
and paid for by such non-defaulting Underwriter or Underwriters in such amount
or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Senior Notes shall
be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the aggregate principal amount of Senior Notes set forth opposite
the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Senior Notes hereunder unless all of the Senior Notes are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Final
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate principal amount of Senior Notes which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total
principal amount of Senior Notes which all Underwriters agreed to purchase
hereunder, and if neither the non-defaulting Underwriters nor the Company shall
make arrangements within the five business day period stated above for the
purchase of all the Senior Notes which the defaulting Underwriter or
Underwriters agreed to purchase hereunder, this Agreement shall be terminated
without further act and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph, and no
action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
9. INDEMNITY AND CONTRIBUTION:
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns
of all the foregoing persons from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or
person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement as originally
filed or in any amendment thereof, or in a Prospectus (the term
"Prospectus" for the purpose of this Section 9 being deemed to include
the Basic Prospectus, any Preliminary Final Prospectus, the Final
Prospectus or any amendment or supplement thereof), or arises out of or
is based upon any omission or alleged omission to state a material fact
required to be stated therein or necessary to make the statements made
therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact with respect
to the Underwriters contained in and in conformity with information
furnished in writing by or on behalf of any Underwriter through WDR or
DLJ to the Company expressly for use with reference to such Underwriter
in such Registration Statement or such Prospectus or arises out of or
is based upon any omission or alleged omission to state a material fact
in connection with such information required to be stated in such
Registration Statement or Prospectus or necessary to make such
information not misleading.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of
which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly
notify the Company in writing of the institution of such Proceeding and
the Company shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses. The omission to so notify the
Company, however, shall not relieve the Company from any liability
which the Company may have to any Underwriter or any such person or
otherwise. Such Underwriter or controlling person shall have the right
to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless the employment of such counsel shall
have been authorized in writing by the Company in connection with the
defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from,
additional to or in competition with those available to the Company (in
which case the Company shall not have the right to direct the defense
of such Proceeding on behalf of the indemnified party or parties, but
the Company may employ counsel and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of
the Company), in any of which events such fees and expenses shall be
borne by the Company and paid as incurred (it being understood,
however, that the Company shall not be liable for the expenses of more
than one separate counsel in addition to any local counsel in any one
Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified
parties who are parties to such Proceeding). The Company shall not be
liable for any settlement of any such claim or Proceeding effected
without its written consent but if settled with the written consent of
the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable
for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such Proceeding and does not
include an admission of fault, culpability or a failure to act, by or
on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers and any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all
the foregoing persons from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact with respect to such Underwriter contained in and in
conformity with information furnished in writing by or on behalf of
such Underwriter through WDR or DLJ to the Company expressly for use in
the registration statement as originally filed or in any amendment
thereof or in a Prospectus, or arises out of or is based upon any
omission or alleged omission to state a material fact in connection
with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company or such
person shall promptly notify such Underwriter in writing of the
institution of such Proceeding and such Underwriter shall assume the
defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment
of all fees and expenses. The omission to so notify such Underwriter,
however, shall not relieve such Underwriter from any liability which
such Underwriter may have to the Company or any such person or
otherwise. The Company or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless
the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or
such Underwriter shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or
them which are different from or additional to or in conflict with
those available to such Underwriter (in which case such Underwriter
shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may
employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne by such
Underwriter and paid as incurred (it being understood, however, that
such Underwriter shall not be liable for the expenses of more than one
separate counsel in addition to any local counsel in any one Proceeding
or series of related Proceedings in the same jurisdiction representing
the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding
effected without the written consent of such Underwriter but if settled
with the written consent of such Underwriter, such Underwriter agrees
to indemnify and hold harmless the Company and any such person from and
against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then the indemnifying party
agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered
into more than 60 business days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice
of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party
for any reason in respect of any losses, damages, expenses, liabilities
or claims referred to in Section 9(a) or (b), then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, damages, expenses, liabilities or
claims (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 Senior Notes 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 of the Underwriters on the
other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, 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 proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the underwriting
discounts and commissions received by the Underwriters. The relative
fault of the Company on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission 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 amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to in
this Section 9(c) shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 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 Section 9(c). Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Senior Notes
underwritten by such Underwriter and distributed to the public were
offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission.
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. The
Underwriter's obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting
commitments and not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors and officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its
directors and officers or any person who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and shall survive any termination of this Agreement or the issuance and
delivery of the Senior Notes. The Company and each Underwriter agree
promptly to notify each other of the commencement of any Proceeding
against it and, in the case of the Company, against any of the
Company's officers or directors, in connection with the issuance and
sale of the Senior Notes, or in connection with the registration
statement or Prospectus.
10. NOTICES: Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered to the Company at the offices of the Company at 000 Xxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx, 00000, Attention:
Chief Financial Officer, with a copy to General Counsel.
11. GOVERNING LAW; CONSTRUCTION: This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION: Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against any Underwriter or any
indemnified party. Each of the Underwriters and the Company (on its behalf and,
to the extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company and may be enforced in any other courts in the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment. The Company hereby appoints, without power of revocation, Xxxxx X.
Xxxxxxx, Esq., or his successor, in the position of General Counsel of the
Company as its agent to accept and acknowledge on its behalf service of any and
all process which may be served in any action, proceeding or counterclaim in any
way relating to or arising out of this Agreement.
13. PARTIES AT INTEREST: The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9, the controlling persons, directors and officers
referred to in such section, and their respective successors, assigns, executors
and administrators. No other person, partnership, heirs, personal
representatives and association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. COUNTERPARTS: This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
15. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
16. MISCELLANEOUS: WDR, an indirect, wholly owned subsidiary of UBS AG,
is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of WDR. Because WDR is a separately incorporated entity, it is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by WDR are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
A lending affiliate of WDR may have lending relationships with issuers
of securities underwritten or privately placed by WDR. To the extent required
under the securities laws, prospectuses and other disclosure documents for
securities underwritten or privately placed by WDR will disclose the existence
of any such lending relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of WDR.
If the foregoing correctly sets forth the understanding between the
Company and the Underwriters, please so indicate in the space provided below for
the purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between the Company and the Underwriters, severally.
Very truly yours,
BLYTH INDUSTRIES INC.
By:
---------------------------------
Title:
Accepted and agreed to as of
the date first above written
WARBURG DILLON READ LLC
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
By: Warburg Dillon Read LLC
By:
-----------------------------------
Title:
By:
-----------------------------------
Title:
SCHEDULE A
Principal Amount of
Underwriter Senior Notes
----------- ------------
Warburg Dillon Read LLC $82,500,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation $52,500,000
Banc Of America Securities LLC $15,000,000
Total $150,000,000
