Exhibit 1.1
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PRICING AGREEMENT
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
As representatives of the Underwriters
named in Schedule I hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
November 28, 2001
Dear Sirs:
Xxxxx Xxxxxxxx U.S.A., Inc. (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement Standard
Provisions filed as an exhibit to the combined registration statement on Form
S-3 of the Company and Xxxxx Xxxxxxxx Corporation ("Parent") (No.
333-48355/48355-01) (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II (the "Designated Securities"). The Designated
Securities shall be guaranteed by Parent pursuant to a Guarantee attached to 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. Each reference to the preliminary prospectus herein and in the
Underwriting Agreement shall be deemed to refer to the Prospectus dated November
21, 2001, as supplemented by the preliminary prospectus supplement, dated
November 21, 2001, filed with the Commission by the Company and Parent pursuant
to Rule 424(b) under the Securities Act, including all documents incorporated by
reference therein. Each reference to the Prospectus herein and in the
Underwriting Agreement shall be deemed to refer to the Prospectus, dated
November 21, 2001, as supplemented by the prospectus supplement relating to the
Designated Securities dated November 28, 2001, to be filed with the Commission
by the Company and Parent pursuant to Rule 424(b) under the Securities Act,
including all documents incorporated by reference therein. Each reference to the
Underwriters 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 address of the Underwriters referred to in such Paragraph
12 is set forth at the end of Schedule II hereto.
A Prospectus in the form heretofore delivered to the Representatives
is now proposed to be filed with the Commission.
2
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 Schedule II 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 two counterparts hereof, 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 among each of the
Underwriters, Parent and the Company.
3
Very truly yours,
XXXXX XXXXXXXX U.S.A., INC.
By: /s/ Xxxxxx Scirocco
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Name: Xxxxxx Scirocco
Title: Chief Financial Officer,
Senior Vice President and
Treasurer
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Chief Financal Officer,
Executive Vice President -
Finance and Operations and
Assistant Secretary
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxxx III
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Name: Xxxxxx X. Xxxxxxxxxx III
Title: Executive Director
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount
of 9% Senior Bonds
to be Purchased
Xxxxxx Xxxxxxx & Co. Incorporated.............. $32,812,500
Xxxxxxx Xxxxx Barney Inc....................... 32,812,500
X.X. Xxxxxxx & Sons, Inc....................... 32,812,500
UBS Warburg LLC................................ 32,812,500
Banc of America Securities LLC................. 750,000
BNY Capital Markets, Inc....................... 750,000
Bear, Xxxxxxx & Co. Inc........................ 750,000
CIBC World Markets Corp........................ 750,000
Xxxx Xxxxxxxx Xxxxxxx.......................... 750,000
Deutsche Banc Alex. Xxxxx Inc.................. 750,000
X.X. Xxxxxx Securities Inc..................... 750,000
Prudential Securities Incorporated............. 750,000
SunTrust Xxxxxxxxx Xxxxxxxx Capital Markets, 750,000
A Division of SunTrust Capital Markets Inc..
Xxxxxx Xxxxxxx Incorporated.................... 750,000
U.S. Bancorp Xxxxx Xxxxxxx Inc................. 750,000
Wachovia Securities, Inc....................... 750,000
Xxxxx Fargo Xxx Xxxxxx, LLC.................... 750,000
Advest Inc..................................... 375,000
Xxxxxx X. Xxxxx & Co. Incorporated............. 375,000
BB&T Capital Markets, a Division of Xxxxx & 375,000
Xxxxxxxxxxxx.................................
Xxxxxxx Xxxxx & Co............................. 375,000
Xxxxxxxx & Partners, L.P....................... 375,000
Xxxxxxxxx & Company LLC........................ 375,000
X.X. Xxxxxxxx & Co............................. 375,000
Xxxxx Securities Inc........................... 375,000
Xxxxxxxxxx & Co. Inc........................... 375,000
Fifth Third Securities, Inc.................... 375,000
Gibraltar Securities Co........................ 375,000
Gruntal & Co., L.L.C........................... 375,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc............... 375,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC.................... 375,000
X.X. Xxxx & Associates, Inc.................... 375,000
McDonald Investments Inc., a KeyCorp Company... 375,000
Mesirow Financial, Inc......................... 375,000
Xxxxxx/Xxxxxx Incorporated..................... 375,000
Pershing/a Division of Xxxxxxxxx, Xxxxxx & 375,000
Xxxxxxxx.....................................
Xxxx, Xxxx & Co. LLC........................... 375,000
Southwest Securities, Inc...................... 375,000
Xxxxxx, Xxxxxxxx & Company Incorporated........ 375,000
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Xxxxxxxx Capital Partners, L.P................. 375,000
The Xxxxxxxx Capital Group, L.P................ 375,000
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Total.......................................... $150,000,000
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SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
9% Senior Bonds due 2031 (the "Bonds")
AGGREGATE PRINCIPAL AMOUNT:
The aggregate principal amount of the Bonds is $150,000,000
The Underwriters have the option to purchase up to an additional
$22,500,000 aggregate principal amount of Bonds, exercisable by written
notice to the Company but not later than December 28, 2001 to cover
over-allotments
PRICE TO PUBLIC:
100% of the principal amount of the Bonds, plus accrued interest, if
any, from December 3, 2001
PURCHASE PRICE BY UNDERWRITERS:
96.85% of the principal amount of the Bonds, plus accrued interest, if
any, from December 3, 2001
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal/Immediately available funds
INDENTURE:
Indenture, dated as of May 1, 1998, between the Company, Parent and
JPMorgan Chase Bank (as successor to The Chase Manhattan Bank), as Trustee
MATURITY:
December 1, 2031
INTEREST RATE:
9%
Interest will be computed on the basis of a 360-day year of twelve
30-day months
The Bonds will bear interest from December 3, 2001
INTEREST PAYMENT DATES:
March 1, June 1, September 1 and December 1 of each year, commencing March
1, 2002
2
REGULAR RECORD DATES:
The business day immediately preceding the interest payment date
REDEMPTION PROVISIONS:
The Bonds may be redeemed at the option of Parent, in whole but not in
part, upon certain changes in tax law as specified in Section 1305 of the
Indenture
The Bonds may be redeemed, in whole but not in part, at any time, at the
Company's option, at a redemption price equal to 100% of their principal
amount, plus accrued and unpaid interest up to but not including the
redemption date, if on or after December 3, 2001 a Change in U.S. Tax Laws
(as defined below) results in a substantial likelihood that the Company
will not be able to deduct the full amount of interest accrued on the
Bonds for U.S. federal income tax purposes. A "Change in U.S. Tax Laws"
means (i) any actual or proposed change in or amendment to the laws of the
U.S. or regulations or rulings promulgated under those laws; (ii) any
change in the way those laws, rulings or regulations are interpreted,
applied or enforced; (iii) any action taken by a taxing authority that
applies to the Company; (iv) any court decision, whether or not in a
proceeding involving the Company; or (v) any technical advice memorandum,
letter ruling or administrative pronouncement issued by the U.S. Internal
Revenue Service, based on a fact pattern substantially similar to that
pertaining to the Company.
The Bonds may also be redeemed, in whole or in part, at any time on or
after December 3, 2006, at the Company's option, at a redemption price
equal to 100% of their principal amount plus accrued and unpaid interest
up to but not including the date of redemption.
SINKING FUND PROVISIONS:
No sinking fund provisions
DEFEASANCE:
Sections 403 and 1010 of the Indenture will apply to the Bonds
FORM OF THE NOTES:
The Bonds shall be Global Notes (as defined in the Indenture)
TIME OF DELIVERY:
10:00 a.m., New York City time, December 3, 2001
CLOSING LOCATION:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
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NAMES AND ADDRESSES OF UNDERWRITERS:
Underwriters: Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx Barney Inc.
As representatives of the Underwriters
named in Schedule I hereto
Address for Notices, etc.: c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
