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Exhibit 1.2
EXECUTION COPY
3,041,000 SHARES
WINDMERE-DURABLE HOLDINGS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
DATED JULY 22, 1998
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TABLE OF CONTENTS
PAGE
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SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................................2
(a) Compliance with Registration Requirements...................................................2
(b) Exchange Act Compliance.....................................................................3
(c) Offering Materials Furnished to Underwriters................................................3
(d) Distribution of Offering Material By the Company............................................3
(e) The Underwriting Agreement..................................................................3
(f) Authorization of the Common Shares..........................................................3
(g) No Applicable Registration or Other Similar Rights..........................................3
(h) No Material Adverse Change..................................................................4
(i) Independent Accountants.....................................................................4
(j) Preparation of the Financial Statements.....................................................4
(k) Incorporation and Good Standing of the Company and its Subsidiaries.........................5
(l) Capitalization and Other Capital Stock Matters..............................................5
(m) Stock Exchange Listing......................................................................5
(n) Non-Contravention of Existing Instruments; No Further Authorizations or
Approvals Required.....................................................................6
(o) No Material Actions or Proceedings..........................................................6
(p) Intellectual Property Rights................................................................7
(q) All Necessary Permits, etc..................................................................7
(r) Title to Properties.........................................................................7
(s) Tax Law Compliance..........................................................................7
(t) Company Not an "Investment Company."........................................................7
(u) Insurance...................................................................................8
(v) No Price Stabilization or Manipulation......................................................8
(w) Related Party Transactions..................................................................8
(x) Company's Accounting System.................................................................8
(y) Year 2000 Compliance........................................................................8
(z) Compliance with Environmental Laws..........................................................9
(aa) Periodic Review of Costs of Environmental Compliance.......................................9
(bb) ERISA Compliance...........................................................................9
(cc) Industry Data.............................................................................10
(dd) Forward Looking Statements................................................................10
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES.............................................10
(a) The Firm Common Shares.....................................................................10
(b) The First Closing Date.....................................................................10
(c) The Optional Common Shares; the Second Closing Date........................................10
(d) Public Offering of the Common Shares.......................................................11
(e) Payment for the Common Shares..............................................................11
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(f) Delivery of the Common Shares..............................................................11
(g) Delivery of Prospectus to the Underwriters.................................................12
SECTION 3. ADDITIONAL COVENANTS OF THE COMPANY..........................................................12
(a) Review of Proposed Amendments and Supplements..............................................12
(b) Securities Act Compliance..................................................................12
(c) Amendments and Supplements to the Prospectus and Other Securities Act
Matters...............................................................................12
(d) Copies of any Amendments and Supplements to the Prospectus.................................13
(e) Blue Sky Compliance........................................................................13
(f) Use of Proceeds............................................................................13
(g) Earnings Statement.........................................................................13
(h) Periodic Reporting Obligations.............................................................13
(i) Agreement Not To Offer or Sell Additional Securities.......................................13
SECTION 4. PAYMENT OF EXPENSES..........................................................................14
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS............................................15
(a) Accountants' Comfort Letter................................................................15
(b) Compliance with Registration Requirements; No Stop Order; No Objection
from NASD.............................................................................15
(c) No Ratings Agency Change...................................................................15
(d) Opinion of Counsel for the Company.........................................................15
(e) Officers' Certificate......................................................................16
(f) Bring-down Comfort Letter..................................................................16
(g) Debt Closing...............................................................................16
(h) Additional Documents.......................................................................16
(i) Qualified Independent Underwriter Pricing Opinion..........................................16
(j) Amendment to Senior Credit Facilities......................................................16
(k) Lock-Up Agreement from the Directors and Executive Officers of the Company.................16
(l) Opinion of Counsel for the Underwriters....................................................17
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES......................................................17
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT..............................................................17
SECTION 8. INDEMNIFICATION..............................................................................17
(a) Indemnification of the Underwriters........................................................17
(b) Indemnification of the Company, its Directors and Officers.................................18
(c) Notifications and Other Indemnification Procedures.........................................19
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(d) Settlements................................................................................20
SECTION 9. CONTRIBUTION.................................................................................20
SECTION 10. DEFAULT OF ONE OR MORE OF THE UNDERWRITERS..................................................21
SECTION 11. TERMINATION OF THIS AGREEMENT...............................................................22
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.........................................22
SECTION 13. NOTICES.....................................................................................23
SECTION 14. SUCCESSORS..................................................................................24
SECTION 15. PARTIAL UNENFORCEABILITY....................................................................24
SECTION 16. GOVERNING LAW PROVISIONS....................................................................24
SECTION 17. GENERAL PROVISIONS..........................................................................24
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UNDERWRITING AGREEMENT
July 22, 1998
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX XXXXX & ASSOCIATES, INC.
c/o NationsBanc Xxxxxxxxxx Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Introductory. Windmere-Durable Holdings, Inc., a Florida corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule A
(the "Underwriters") an aggregate of 3,041,000 shares (the "Firm Common Shares")
of its Common Stock, par value $.10 per share (the "Common Stock"). In addition,
the Company has granted to the Underwriters an option to purchase up to an
additional 456,150 shares (the "Optional Common Shares") of Common Stock, as
provided in Section 2. The Firm Common Shares and, if and to the extent such
option is exercised, the Optional Common Shares are collectively called the
"Common Shares."
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-56069), which registration statement contains a form of prospectus
relating to the offering from time to time of up to $250,000,000 in aggregate
principal amount of debt securities and/or shares of Common Stock of the Company
in accordance with Rule 415 under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder (collectively, the "Securities
Act"). Such registration statement, as amended, has been declared effective by
the Commission. In addition, the Company has prepared and filed with the
Commission a Preliminary Prospectus (as defined) pursuant to Rule 424(b)(3)
under the Securities Act in accordance with Rule 424(b)(3) under the Securities
Act.
The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each date that
the Registration Statement any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and the time
that this Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus, including any
preliminary prospectus supplement, used in connection with the offer of any
Common Shares prior to the date hereof and any preliminary prospectus included
in the Registration Statement at the Effective Date. The form of prospectus,
including any prospectus supplement, relating to the Common Shares as first
filed pursuant to Rule 424(b)(5) after the Execution Time or, if no filing
pursuant to Rule 424(b)(5) is required, such form of prospectus included in the
Registration Statement at the Effective Date, is hereinafter called the
"Prospectus." "Registration Statement" shall mean the registration statement
referred to above (File No. 333-56069), including all
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documents and financial statements incorporated or deemed to be incorporated by
reference therein, as amended at the Execution Time and, in the event any
post-effective amendment thereto becomes effective or any supplement thereto is
filed prior to the Closing Date (as defined), shall also mean such registration
statement as so amended or supplemented. Any reference herein to the
Registration Statement, a Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents and financial statements
incorporated or deemed to be incorporated therein pursuant to Item 12 of Form
S-3 which were filed under the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder (collectively, the "Exchange
Act"), on or before the Effective Date of the Registration Statement or the
issue date of such Preliminary Prospectus or Prospectus, as the case may be, and
shall include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System ("XXXXX"); and any
reference herein to the terms, "amend," "amendment" or "supplement" with respect
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or the
issue date of any Preliminary Prospectus or the Prospectus, as the case may be
deemed to be incorporated therein by reference.
The Company hereby confirms its agreements with the
Underwriters as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents, warrants and covenants to each
Underwriter as follows:
(a) Compliance with Registration Requirements. The Registration
Statement, as of the Effective Date of the Registration Statement and as of the
First Closing Date and the Second Closing Date, if any, and the Prospectus, as
of the date first filed in accordance with Rule 424(b)(5) under the Securities
Act after the Execution Time and on the First Closing Date and the Second
Closing Date, if any, complied and will comply, as the case may be, in all
material respects with the requirements of the Securities Act and, if filed by
electronic transmission pursuant to XXXXX (except as permitted by Regulation S-T
under the Securities Act), was identical in content to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Common Shares. The Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the effectiveness
of the Registration Statement is in effect and no proceedings for such purpose
have been instituted or are pending before or threatened by the Commission; and
any required filing of the Prospectus pursuant to Rule 424(b) under the
Securities Act has been made in accordance with Rule 424(b) under the Securities
Act. The Registration Statement, as of the Effective Date of the Registration
Statement (and, if any amendment to the Registration Statement or an annual
report on Form 10-K has been filed by the Company with the Commission subsequent
to the Effective Date, then at the time of the most recent such filing) and as
of the First Closing Date and the Second Closing Date, if any, did not and will
not contain any 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. The Prospectus, as amended or supplemented, as of its issue date
and as of the First Closing Date and the Second Closing Date, if any, did not
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall
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not apply to statements in or omissions from the Registration Statement or the
Prospectus, or any amendments or supplements thereto, made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by NationsBanc Xxxxxxxxxx Securities LLC ("NMSI") or any
other Underwriter expressly for use in the Registration Statement or the
Prospectus. There are no contracts or other documents required to be described
in the Prospectus or to be filed as exhibits to the Registration Statement which
have not been described, filed or incorporated by reference therein, as
required.
(b) Exchange Act Compliance. The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act, and, when read together with the
other information in the Prospectus, at the time the Registration Statement and
any amendments thereto become effective and at the First Closing Date and the
Second Closing Date (as defined in Section 2(c) hereof), as the case may be,
will 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 fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(c) Offering Materials Furnished to Underwriters. The Company has
delivered to NMSI conformed copies of the Registration Statement and Preliminary
Prospectuses and the Prospectus, as amended or supplemented, in such quantities
and at such places as the Underwriters have reasonably requested.
(d) Distribution of Offering Material By the Company. The Company has
not distributed and will not distribute, prior to the later of the Second
Closing Date (as defined below) and the completion of the Underwriters'
distribution of the Common Shares, any offering material in connection with the
offering and sale of the Common Shares other than the Preliminary Prospectuses,
the Prospectus or the Registration Statement (including any documents deemed to
be incorporated by reference therein).
(e) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(f) Authorization of the Common Shares. The Common Shares to be
purchased by the Underwriters from the Company have been duly authorized for
issuance and sale and, when issued and delivered by the Company pursuant to this
Agreement, will be validly issued, fully paid and nonassessable.
(g) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement; except for such rights as have been
duly waived.
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(h) No Material Adverse Change. Except as otherwise disclosed in or
contemplated by the Prospectus, subsequent to the respective dates as of which
information is given in the Prospectus: (i) there has been no material adverse
change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations, whether or not arising from transactions in
the ordinary course of business, of the Company and its subsidiaries, considered
as one entity (any such change is called a "Material Adverse Change"); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, any of its
subsidiaries on any class of capital stock or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital stock.
(i) Independent Accountants. Xxxxx Xxxxxxxx LLP and Ernst & Young LLP,
who have expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) and
supporting schedules filed with the Commission as a part of the Registration
Statement and included in the Prospectus, are independent public or certified
public accountants as required by the Securities Act and the Exchange Act.
(j) Preparation of the Financial Statements. The financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, or in any supplement thereto or amendment thereof, present fairly,
in all material respects (i) the consolidated financial position of the Company
and its subsidiaries and (ii) the financial position of the Household Products
Group (excluding the Cleaning and Lighting Divisions) ("HPG") of The Black &
Xxxxxx Corporation as of and at the dates indicated and the results of their
respective operations and cash flows for the periods specified. The supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. Such financial statements and supporting
schedules have been prepared in conformity with generally accepted accounting
principles as applied in the United States applied on a consistent basis
throughout the periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or supporting schedules are
required to be included in the Registration Statement. The financial data set
forth in the Prospectus under the captions "Prospectus Summary--Summary
Historical Financial Information," "Selected Historical Financial Information"
and "Capitalization" fairly present the information set forth therein on a basis
consistent with that of the audited financial statements contained in the
Registration Statement. The pro forma financial statements of the Company and
its subsidiaries and the related notes thereto included under the caption
"Prospectus Summary -- Unaudited Pro Forma Combined Financial Information" and
"Unaudited Pro Forma Combined Financial Information" and elsewhere in the
Prospectus and in the Registration Statement present fairly the information
contained therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly presented on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein. The Company's ratios of earnings to fixed charges set forth in the
Prospectus under the caption "Prospectus Summary -- Summary Historical Financial
Information," "Selected Historical Financial Information" and "Ratio of Earnings
to Fixed Charges" have been calculated in compliance with Item 503(d) of
Regulation S-K under the Securities Act.
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(k) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated or organized, as applicable, and is validly existing as a
corporation or limited liability company, as applicable, in good standing under
the laws of the jurisdiction of its incorporation and has corporate or limited
liability company, as applicable, power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and,
in the case of the Company, to enter into and perform its obligations under this
Agreement. Each foreign subsidiary is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except for such jurisdictions where the
failure to so qualify or to be in good standing would not, individually or in
the aggregate, result in a Material Adverse Change. All of the issued and
outstanding capital stock of each subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim, except for such security
interests, mortgages, pledges, liens, encumbrances or claims that are disclosed
in the Prospectus. The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than the subsidiaries listed
in the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 and the subsidiaries listed on Schedule 1 attached hereto.
(l) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the
Prospectus or upon exercise of outstanding options or warrants described in the
Prospectus). The Common Stock (including the Common Shares) conforms in all
material respects to the description thereof contained in the Prospectus. All of
the issued and outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and have been issued in
compliance with federal and state securities laws (with respect to Canadian law,
(i) assuming that (A) the Common Shares offered in Canada are offered only in
Alberta, Manitoba, Ontario and Quebec and (B) purchasers of the Common Shares in
Alberta, Manitoba and Quebec are Permitted Purchasers (as defined in the
Memorandum dated July 20, 1998, as amended, from Stikeman, Elliot, Canadian
counsel to NMSI, to the Company (the "Canadian Memo")) and (ii) in reliance on
the Canadian Memo). None of the outstanding shares of Common Stock were issued
in violation of any preemptive rights, rights of first refusal or other similar
rights to subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of first
refusal or other rights to purchase, or equity or debt securities convertible
into or exchangeable or exercisable for, any capital stock of the Company or any
of its subsidiaries other than those accurately described in the Prospectus. The
description of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, contained in
the Prospectus accurately and fairly presents the information required to be
shown with respect to such plans, arrangements, options and rights.
(m) Stock Exchange Listing. The Common Stock (including the Common
Shares) is registered pursuant to Section 12(b) of the Securities Exchange Act
of 1934 (the "Exchange Act") and is listed on The New York Stock Exchange (the
"NYSE"), and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or delisting the Common Stock from the NYSE, nor has the
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Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(n) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or is in default (or,
with the giving of notice or lapse of time, would be in default) ("Default")
under any indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound (including,
without limitation, the Company's 10% Senior Subordinated Notes due 2008 (the
"Notes") or the related indenture and the Senior Credit Facilities (as defined
in the Prospectus)), or to which any of the property or assets of the Company or
any of its subsidiaries is subject (each, an "Existing Instrument"), except for
such Defaults as would not, individually or in the aggregate, result in a
Material Adverse Change or such Defaults that are described in the Prospectus.
The Company's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus (i)
have been duly authorized by all necessary corporate action and will not result
in any violation of the provisions of the charter or by-laws of the Company or
any subsidiary, (ii) will not conflict with or constitute a breach of, or
Default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument as in effect on the First Closing Date and the Second
Closing Date, if any, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change or such Defaults that are described in the
Prospectus and (iii) will not result in any violation of any law, administrative
regulation or administrative or court decree applicable to the Company or any
subsidiary (with respect to Canadian law, (i) assuming that (A) the Common
Shares offered in Canada are offered only in Alberta, Manitoba, Ontario and
Quebec and (B) purchasers of the Common Shares in Alberta, Manitoba and Quebec
are Permitted Purchasers and (ii) in reliance on the Canadian Memo). No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency, is required for
the Company's execution, delivery and performance of this Agreement and
consummation of the transactions contemplated hereby and by the Prospectus,
except such as have been obtained or made by the Company and are in full force
and effect under the Securities Act, applicable state securities or blue sky
laws and from the National Association of Securities Dealers, Inc. (the "NASD")
(with respect to Canadian law, (i) assuming that (A) the Common Shares offered
in Canada are offered only in Alberta, Manitoba, Ontario and Quebec and (B)
purchasers of the Common Shares in Alberta, Manitoba and Quebec are Permitted
Purchasers and (ii) in reliance on the Canadian Memo).
(o) No Material Actions or Proceedings. Except as otherwise disclosed
in the Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the Company's knowledge, threatened (i) against or
affecting the Company or any of its subsidiaries, (ii) which have as the subject
thereof any officer or director of, or property owned or leased by, the Company
or any of its subsidiaries or (iii) relating to discrimination matters, where in
any such case (A) there is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company or such subsidiary and
(B) any such action, suit or proceeding, if so determined adversely, would
reasonably be expected to result in a Material Adverse Change or adversely
affect the consummation of the transactions contemplated by this
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Agreement. No material labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the best of the Company's knowledge, is
threatened or imminent.
(p) Intellectual Property Rights. The Company and its subsidiaries own
or possess sufficient trademarks, trade names, patent rights, copyrights,
licenses, approvals, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") reasonably necessary to conduct their businesses
as now conducted; and except as otherwise disclosed in the Prospectus, the
expected expiration of any of such Intellectual Property Rights would not result
in a Material Adverse Change. Neither the Company nor any of its subsidiaries
has received any notice of infringement or conflict with asserted Intellectual
Property Rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Change.
(q) All Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, except where the failure to possess such
certificates, authorizations or permits would not result in a Material Adverse
Change. Neither the Company nor any subsidiary has received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Change.
(r) Title to Properties. The Company and each of its subsidiaries has
good and marketable title to all the properties and assets reflected as owned in
the financial statements referred to in Section 1(j) above (or elsewhere in the
Prospectus), in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except (i) such as do
not materially and adversely affect the value of such property and do not
materially interfere with the use made or proposed to be made of such property
by the Company or such subsidiary, (ii) as set forth in the Registration
Statement and the Prospectus or (iii) as could not reasonably be expected to
result in a Material Adverse Change. The real property, improvements, equipment
and personal property held under lease by the Company or any subsidiary are held
under valid and enforceable leases, with such exceptions as are not material and
do not materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the Company or
such subsidiary.
(s) Tax Law Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns, other
than those returns which failure to file would not result in a Material Adverse
Change and have paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied against
any of them other than those amounts being contested in good faith or those
amounts which the failure to pay would not result in a Material Adverse Change .
The Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 1(j) above in respect of all
federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been
finally determined.
(t) Company Not an "Investment Company." The Company has been advised
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). The Company is not, and after receipt of
payment for the Common Shares will not be, an "investment company" within the
meaning of the Investment
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Company Act and will conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(u) Insurance. Each of the Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are generally
deemed adequate and customary for their businesses including, but not limited
to, policies covering real and personal property owned or leased by the Company
and its subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes. The Company has no reason to believe that it or any subsidiary will
not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change.
(v) No Price Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to or that might
be reasonably expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Common
Shares.
(w) Related Party Transactions. There are no business relationships or
related-party transactions involving the Company or any subsidiary or any other
person required to be described in the Prospectus which have not been described
as required.
(x) Company's Accounting System. The Company maintains a system of
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles as applied in the United States and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(y) Year 2000 Compliance. The Company has (i) initiated a review and
assessment of all areas within its and each of its subsidiaries' business and
operations (including those affected by suppliers, vendors and customers) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Company or any of its subsidiaries (or
suppliers, vendors and customers) that are material to the Company's or any of
its subsidiaries' business or operations may be unable to recognize and perform
properly date-sensitive functions involving certain dates on and after January
1, 2000), (ii) developed a plan and timeline for addressing the Year 2000
Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. Based on the actions taken by the Company to
date, the Company is not aware of any reason its suppliers, vendors and
customers would fail to be Year 2000 Compliant (as defined). Based on the
foregoing, the Company believes that all computer applications that are material
to its or any of its subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year 2000
Compliant"), except to the extent that a failure to do so could not reasonably
be expected to have Material Adverse Change.
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(z) Compliance with Environmental Laws. Except as would not,
individually or in the aggregate, result in a Material Adverse Change (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign law or regulation relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environment Concern
(collectively, "Environmental Laws"), which violation includes, but is not
limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries
under applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that the Company or any of its subsidiaries
is in violation of any Environmental Law; (ii) there is no claim, action or
cause of action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no written
notice by any person or entity alleging potential liability for investigatory
costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the environment, of
any Material of Environmental Concern at any location owned, leased or operated
by the Company or any of its subsidiaries, now or in the past (collectively,
"Environmental Claims"), pending or, to the Company's knowledge, threatened
against the Company or any of its subsidiaries or any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law; and (iii) to
the Company's knowledge, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without limitation,
the release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that reasonably could result in a violation of any
Environmental Law or form the basis of a potential Environmental Claim against
the Company or any of its subsidiaries or against any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries has
retained or assumed either contractually or by operation of law.
(aa) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its established
reserves, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, result in a Material
Adverse Change.
(bb) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, its subsidiaries or their "ERISA Affiliates" (as
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defined below) are in compliance in all material respects with ERISA. "ERISA
Affiliate" means, with respect to the Company or a subsidiary, any member of any
group of organizations described in Sections 414(b),(c),(m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such subsidiary
is a member. No "reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No "employee benefit plan" established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates, if such "employee benefit
plan" were terminated, would have any "amount of unfunded benefit liabilities"
(as defined under ERISA). Neither the Company, its subsidiaries nor any of their
ERISA Affiliates has incurred or reasonably expects to incur any liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code.
Each "employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the loss of such
qualification.
(cc) Industry Data. To the Company's knowledge, the industry-related
data included in the Registration Statement and the Prospectus is true and
accurate in all material respects.
Any certificate signed by an officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each Underwriter as to the
matters set forth therein.
(dd) Forward Looking Statements. The forward looking statements
included in the Registration Statement and the Prospectus reflect the good faith
belief of the Company and are based on assumptions the Company believes to be
reasonable.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE COMMON SHARES.
(a) The Firm Common Shares. The Company agrees to issue and sell to the
Underwriters the Firm Common Shares upon the terms set forth herein. On the
basis of the representations, warranties and agreements contained herein, and
upon the terms but subject to the conditions set forth herein, the Underwriters
agree, severally and not jointly, to purchase from the Company the respective
number of Firm Common Shares set forth opposite their names on Schedule A. The
purchase price per Firm Common Share to be paid by the Underwriters to the
Company shall be $32.30 per share.
(b) The First Closing Date. Delivery of certificates for the Firm
Common Shares to be purchased by the Underwriters and payment therefor shall be
made at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
9:00 a.m. New York time, on July 27, 1998 or such other time and date NMSI shall
designate by notice to the Company (the time and date of such closing are called
the "First Closing Date"). The Company hereby acknowledges that circumstances
under which NMSI may provide notice to postpone the First Closing Date as
originally scheduled include, but are in no way limited to, a delay as
contemplated by the provisions of Section 10 hereof.
(c) The Optional Common Shares; the Second Closing Date. In addition,
on the basis of the representations, warranties and agreements contained herein,
and upon the terms but
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subject to the conditions set forth herein, the Company hereby grants an option
to the Underwriters to purchase, severally and not jointly, up to an aggregate
of 456,150 Optional Common Shares from the Company at the purchase price per
share to be paid by the Underwriters for the Firm Common Shares. The option
granted hereunder is for use by the Underwriters solely in covering any
over-allotments in connection with the sale and distribution of the Firm Common
Shares. The option granted hereunder may be exercised at any time (but not more
than once) within 30 days from the date of this Agreement upon notice by NMSI to
the Company. Such notice shall set forth (i) the aggregate number of Optional
Common Shares as to which the Underwriters are exercising the option, (ii) the
names and denominations in which the certificates for the Optional Common Shares
are to be registered and (iii) the time, date and place at which such
certificates will be delivered (which time and date may be simultaneous with,
but not earlier than, the First Closing Date; and in such case the term "First
Closing Date" shall refer to the time and date of delivery of certificates for
the Firm Common Shares and the Optional Common Shares). Such time and date of
delivery, if subsequent to the First Closing Date, is called the "Second Closing
Date" and shall be determined by NMSI and shall not be earlier than three nor
later than five full business days after delivery of such notice of exercise. If
any Optional Common Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Optional Common Shares
(subject to such adjustments to eliminate fractional shares as NMSI may
determine) that bears the same proportion to the total number of Optional Common
Shares to be purchased as the number of Firm Common Shares set forth on Schedule
A opposite the name of such Underwriter bears to the total number of Firm Common
Shares. NMSI may cancel the option at any time prior to its expiration by giving
written notice of such cancellation to the Company.
(d) Public Offering of the Common Shares. NMSI hereby advises the
Company that the Underwriters intend to offer for sale to the public, as
described in the Prospectus, their respective portions of the Common Shares as
soon after this Agreement has been executed and the Registration Statement has
been declared effective as NMSI, in its sole judgment, has determined is
advisable and practicable.
(e) Payment for the Common Shares. Payment for the Common Shares shall
be made at the First Closing Date (and, if applicable, at the Second Closing
Date) by wire transfer of immediately available funds to the order of the
Company.
It is understood that NMSI has been authorized, for its own
account and the accounts of the Underwriters, to accept delivery of and receipt
for, and make payment of the purchase price for, the Firm Common Shares and any
Optional Common Shares the Underwriters have agreed to purchase. NMSI,
individually and not as an Underwriter, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by NMSI, in its capacity as Underwriter, by the
First Closing Date or the Second Closing Date, as the case may be, for the
account of such Underwriter, but any such payment shall not relieve such
Underwriter from any of its obligations under this Agreement.
(f) Delivery of the Common Shares. The Company shall deliver, or cause
to be delivered, to NMSI for the accounts of the Underwriters certificates for
the Firm Common Shares at the First Closing Date, against the irrevocable
release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The Company shall also deliver, or cause to be
delivered, to NMSI for the accounts of the Underwriters, certificates for the
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Optional Common Shares the Underwriters have agreed to purchase at the First
Closing Date or the Second Closing Date, as the case may be, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The certificates for the Common Shares
shall be in definitive form and registered in such names and denominations as
NMSI shall have requested at least two full business days prior to the First
Closing Date (or the Second Closing Date, as the case may be) and shall be made
available for inspection on the business day preceding the First Closing Date
(or the Second Closing Date, as the case may be) at a location in New York City
as NMSI may designate. Time shall be of the essence, and delivery at the time
and place specified in this Agreement is a further condition to the obligations
of the Underwriters.
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00
p.m. on the second business day following the date the Common Shares are
released by the Underwriters for sale to the public, the Company shall delivery
or cause to be delivered copies of the Prospectus in such quantities and at such
places as NMSI shall reasonably request.
SECTION 3. ADDITIONAL COVENANTS OF THE COMPANY.
The Company further covenants and agrees with each Underwriter as follows:
(a) Review of Proposed Amendments and Supplements. During such period
beginning on the date hereof and ending on the later of the First Closing Date
or such date, as in the opinion of counsel for the Underwriters, the Prospectus
is no longer required by law to be delivered in connection with sales by an
Underwriter or dealer (the "Prospectus Delivery Period"), prior to amending or
supplementing the Registration Statement or the Prospectus, the Company shall
furnish to the Underwriters for review a copy of each such proposed amendment or
supplement, and the Company shall not file any such proposed amendment or
supplement to which the Underwriters reasonably object within a reasonable
period of time thereafter.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Underwriters in writing (i) of the receipt of
any comments of, or requests for additional or supplemental information from,
the Commission, (ii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any
Preliminary Prospectus or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement becomes effective and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Common Stock from any securities
exchange upon which it is listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at any time,
the Company will use its best efforts to obtain the lifting of such order at the
earliest possible moment. Additionally, the Company agrees that it shall comply
with the provisions of Rule 424(b) under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under Rule
424(b) were received in a timely manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities
Act Matters. If, during the Prospectus Delivery Period, any event shall occur or
condition exist as a
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result of which it is necessary to amend or supplement the Prospectus in order
to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if in the opinion of
NMSI or counsel for the Underwriters it is otherwise necessary to amend or
supplement the Prospectus to comply with law, the Company agrees to promptly
prepare (subject to Section 3(a) hereof), file with the Commission and furnish
at its own expense to the Underwriters and to dealers, amendments or supplements
to the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish to the Underwriters, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any amendments
and supplements thereto (including any documents incorporated or deemed
incorporated by reference therein) as the Underwriters may reasonably request.
(e) Blue Sky Compliance. The Company shall cooperate with the
Underwriters and counsel for the Underwriters to qualify or register the Common
Shares for sale under (or obtain exemptions from the application of) the state
securities or blue sky laws or Canadian provincial Securities laws of those
jurisdictions designated by NMSI, shall comply with such laws and shall continue
such qualifications, registrations and exemptions in effect so long as required
for the distribution of the Common Shares. The Company shall not be required to
qualify as a foreign corporation or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign corporation. The
Company will advise the Underwriters promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Common
Shares for offering, sale or trading in any jurisdiction or any initiation or
threat of any proceeding for any such purpose of which the Company shall become
aware, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts
to obtain the withdrawal thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Common Shares sold by it in the manner described under the caption
"Use of Proceeds" in the Prospectus.
(g) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Underwriters an earnings
statement (which need not be audited) covering the twelve-month period ending
June 30, 1999 that satisfies the provisions of Section 11(a) of the Securities
Act.
(h) Periodic Reporting Obligations. During the Prospectus Delivery
Period the Company shall file, on a timely basis, with the Commission and The
New York Stock Exchange all reports and documents required to be filed under the
Exchange Act.
(i) Agreement Not To Offer or Sell Additional Securities. During the
period of 120 days following the date of the Prospectus, the Company will not,
without the prior written consent of NMSI (which consent may be withheld at the
sole discretion of NMSI), directly or indirectly, sell, offer, contract or grant
any option to sell, pledge, transfer or establish an open "put equivalent
position" within the meaning of Rule 16a-1(h) under the Exchange Act, or
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otherwise dispose of or transfer, or announce the offering of, or file any
registration statement under the Securities Act (other than on Form S-8 or Form
S-3 relating to resales of securities pursuant to registration rights in
existence on the date hereof as described in the general instructions to Form
S-3), in respect of, any shares of Common Stock, options or warrants to acquire
shares of the Common Stock or securities exchangeable or exercisable for or
convertible into shares of Common Stock (other than as contemplated by this
Agreement with respect to the Common Shares); provided, however, that the
Company may issue shares of its Common Stock or options to purchase its Common
Stock, or Common Stock upon exercise of options, pursuant to any stock option,
stock bonus or other stock plan or arrangement described in the Prospectus, but
only, with respect to executive officers and directors of the Company, if the
holders of such shares, options, or shares issued upon exercise of such options,
agree in writing not to sell, offer, dispose of or otherwise transfer any such
shares or options during such 120 day period without the prior written consent
of NMSI (which consent may be withheld at the sole discretion of NMSI).
NMSI, on behalf of the Underwriters, may, in its sole
discretion, waive in writing the performance by the Company of any one or more
of the foregoing covenants or modify the time for their performance; provided,
however, that no such modification shall extend the period during which the
Company must so perform without the prior consent of the Company.
SECTION 4. PAYMENT OF EXPENSES.
The Company agrees to pay all costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby, including without
limitation (i) all expenses incident to the issuance and delivery of the Common
Shares (including all printing and engraving costs), (ii) all fees and expenses
of the registrar and transfer agent of the Common Stock, (iii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale
of the Common Shares to the Underwriters, (iv) all fees and expenses of the
Company's counsel, independent public or certified public accountants and other
advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each Preliminary Prospectus and the Prospectus, and
all amendments and supplements thereto, and this Agreement, (vi) all filing
fees, attorneys' fees and expenses incurred by the Company or the Underwriters
in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Common Shares for offer
and sale under the state securities or blue sky laws, and preparing and printing
a "Blue Sky Survey" or memorandum, and any supplements thereto, advising the
Underwriters of such qualifications, registrations and exemptions, (vii) the
filing fees incident to, and the reasonable fees and expenses of counsel for the
Underwriters in connection with, the NASD's review and approval of the
Underwriters' participation in the offering and distribution of the Common
Shares, and (viii) all other fees, costs and expenses referred to in Item 14 of
Part II of the Registration Statement. Except as provided in this Section 4,
Section 6, Section 8 and Section 9 hereof, the Underwriters shall pay their own
expenses, including the fees and disbursements of their counsel.
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SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase and pay for
the Common Shares as provided herein on the First Closing Date and, with respect
to the Optional Common Shares, the Second Closing Date, if any, shall be subject
to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof and as of the First Closing
Date as though then made and, with respect to the Optional Common Shares, as of
the Second Closing Date as though then made, to the timely performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Underwriters
shall have received from each of Xxxxx Xxxxxxxx LLP, independent certified
public accountants for the Company, and Ernst & Young LLP, independent public
auditors for HPG, a letter dated the date hereof addressed to the Underwriters,
in form and substance satisfactory to the Underwriters and their counsel,
containing statements and information of the type ordinarily included in
accountant's "comfort letters" to underwriters, delivered according to Statement
of Auditing Standards No. 72 (or any successor bulletin), with respect to the
audited and unaudited financial statements and certain financial information of
the Company and its subsidiaries, and HPG contained in the Registration
Statement and the Prospectus.
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD. For the period from and after effectiveness of this
Agreement and prior to the First Closing Date and, with respect to the Optional
Common Shares, the Second Closing Date, if any:
(i) the Company, if required, shall have filed the Prospectus with the
Commission in the manner and within the time period required by Rule 424(b)(5)
under the Securities Act;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment to the Registration Statement, shall
be in effect and no proceedings for such purpose shall have been instituted or,
to the Company's knowledge, threatened by the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) No Ratings Agency Change. For the period from and after the date of
this Agreement and prior to the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date, if any, there shall not have
occurred any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(d) Opinion of Counsel for the Company. On each of the First Closing
Date and the Second Closing Date, if any, the Underwriters shall have received
the favorable opinion of Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx,
counsel for the Company, dated as of such Closing Date, in substantially the
form attached as Exhibit A.
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(e) Officers' Certificate. On each of the First Closing Date and the
Second Closing Date, if any, the Underwriters shall have received a written
certificate executed by the Chairman of the Board, Chief Executive Officer and
President of the Company and the Chief Financial Officer of the Company, dated
as of such Closing Date, to the effect set forth in subsections (b)(ii) and (c)
of this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior
to such Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the Company set
forth in Section 1 of this Agreement are true and correct with the same force
and effect as though expressly made on and as of such Closing Date; and
(iii) the Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(f) Bring-down Comfort Letter. On each of the First Closing Date and
the Second Closing Date, if any, the Underwriters shall have received from each
of Xxxxx Xxxxxxxx LLP, independent public or certified public accountants for
the Company, and Ernst & Young LLP, independent public or certified public
accountants for HPG, a letter dated such date, in form and substance
satisfactory to the Underwriters, to the effect that they reaffirm the
statements made in the letter furnished by them pursuant to subsection (a) of
this Section 5, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days prior to
the First Closing Date or Second Closing Date, as the case may be.
(g) Debt Closing. The offering of the Notes shall close simultaneously
with the offering of the Common Shares on First Closing Date.
(h) Additional Documents. On or before each of the First Closing Date
and the Second Closing Date, if any, the Underwriters and counsel for the
Underwriters shall have received such information, documents and opinions as
they may reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Common Shares as contemplated herein, or in order to
evidence the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
(i) Qualified Independent Underwriter Pricing Opinion. The Underwriters
shall have received the pricing opinion from Xxxxxxx Xxxxx & Associates, Inc.,
as qualified independent underwriter.
(j) Amendment to Senior Credit Facilities. The Company, the Subsidiary
Guarantors party thereto and the lenders party thereto shall have executed an
amendment to the Senior Credit Facilities (as defined in the Prospectus)
increasing the permitted outstanding senior subordinated indebtedness to
$150,000,000, and each of the Underwriters shall have received an executed copy
thereof.
(k) Lock-Up Agreement from the Directors and Executive Officers of the
Company. On the First Closing Date, the Company shall have furnished to the
Underwriters agreements in the form of Exhibit B hereto from the directors and
executive officers of the Company listed in
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Schedule 2 attached hereto, and such agreements shall be in full force and
effect on each of the First Closing Date and the Second Closing Date, if any.
(l) Opinion of Counsel for the Underwriters. On each of the First
Closing Date and the Second Closing Date, if any, the Underwriters shall have
received the favorable opinion of Xxxxxx & Xxxxxxx, counsel for the
Underwriters, dated as of such Closing Date.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Underwriters by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional Common Shares, at any time prior
to the Second Closing Date, if any, which termination shall be without liability
on the part of any party to any other party, except that Section 4, Section 6,
Section 8 and Section 9 hereof shall at all times be effective and shall survive
such termination.
SECTION 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES.
If this Agreement is terminated by the Underwriters pursuant
to Section 5, Section 7, Section 10 or Section 11 hereof, or if the sale to the
Underwriters of the Common Shares on the First Closing Date is not consummated
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof, the Company
agrees to reimburse the Underwriters (or such Underwriters as have terminated
this Agreement with respect to themselves), severally, upon demand for all
documented out-of-pocket expenses that shall have been reasonably incurred by
the Underwriters in connection with the proposed purchase and the offering and
sale of the Common Shares, including but not limited to reasonable fees and
disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges.
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT.
This Agreement shall not become effective until the later of
(i) the execution of this Agreement by the parties hereto and (ii) notification
by the Commission to the Company of the effectiveness of the Registration
Statement under the Securities Act.
Prior to such effectiveness, this Agreement may be terminated
by any party by notice to each of the other parties hereto, and any such
termination shall be without liability on the part of (a) the Company to any
Underwriter, except that the Company shall be obligated to reimburse the
expenses of the Underwriters pursuant to Sections 4 and 6 hereof, (b) of any
Underwriter to the Company, or (c) of any party hereto to any other party except
that the provisions of Section 8 and Section 9 shall at all times be effective
and shall survive such termination.
SECTION 8. INDEMNIFICATION.
(a) Indemnification of the Underwriters. The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees, and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act or the Exchange Act against any loss, claim, damage, liability or
expense, as incurred, to which such Underwriter, any such officer or employee,
or such controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common
law or
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otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Company), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (ii) upon any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; or
(iii) in whole or in part upon any material inaccuracy in the representations
and warranties of the Company contained herein; or (iv) in whole or in part upon
any material failure of the Company to perform its obligations hereunder or
under law; or (v) any act or failure to act or any alleged act or failure to act
by any Underwriter in connection with, or relating in any manner to, the Common
Stock or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon any matter covered by clause (i) or (ii) above, provided that the
Company shall not be liable under this clause (v) to the extent that a court of
competent jurisdiction shall have determined by a final judgment that such loss,
claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its bad faith or willful misconduct; and to reimburse each Underwriter and each
such controlling person for any and all expenses (including the reasonable fees
and disbursements of counsel chosen by NMSI) as such expenses are reasonably
incurred by such Underwriter or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any of the Underwriters expressly for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto); and provided, further, that with respect to
any Preliminary Prospectus, the foregoing indemnity shall not inure to the
benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Common Shares, or any person controlling
such Underwriter, if copies of the Prospectus were timely delivered to the
Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Common Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or expense. The indemnity set forth
in this Section 8(a) shall be in addition to any liabilities that the Company
may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company, or any such
director, officer or controlling person may become subject, under the Securities
Act, the Exchange Act, or other federal or state statutory law or regulation, or
at common law or
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otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto), or arises out of or is based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with written information furnished to the Company by the
Underwriters expressly for use therein; and to reimburse the Company, or any
such director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, or any such director, officer or controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. The Company
hereby acknowledges that the only information that the Underwriters have
furnished to the Company expressly for use in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth (A) as the first sentence of the last
paragraph of text on the cover page of the Prospectus concerning the terms of
the offering by the Underwriters, (B) the paragraph on the inside front cover
page of the Prospectus concerning stabilization by the Underwriters and (C) in
the table in the first paragraph and as the second and tenth paragraphs under
the caption "Underwriting" in the Prospectus; and the Underwriters confirm that
such statements are correct. The indemnity set forth in this Section 8(b) shall
be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed
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separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (NMSI in the case of Section 8(b)
and Section 9), representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there is a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. 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 Section
8(c) hereof, 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 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
SECTION 9. CONTRIBUTION.
If the indemnification provided for in Section 8 hereof is for
any reason held to be unavailable to or otherwise insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (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 Common Shares pursuant to this Agreement 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 the Underwriters, on the other hand, in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, 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 hand, in connection with the offering of the
Common Shares pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Common
Shares pursuant to this Agreement (before deducting expenses) received by the
Company, and the total underwriting discount received by the Underwriters, in
each case as set forth on the front cover page of the Prospectus bear to the
aggregate initial public offering price
20
25
of the Common Shares as set forth on such cover. The relative fault of the
Company, on the one hand, and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or the Underwriters, on the other hand, 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, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8(c) hereof,
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions
set forth in Section 8(c) hereof with respect to notice of commencement of any
action shall apply if a claim for contribution is to be made under this Section
9; provided, however, that no additional notice shall be required with respect
to any action for which notice has been given under Section 8(c) hereof for
purposes of indemnification.
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 which does not take account
of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the
underwriting commissions received by such Underwriter in connection with the
Common Shares underwritten by it and distributed to the public. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 9 are several, and not joint, in proportion
to their respective underwriting commitments as set forth opposite their names
in Schedule A. For purposes of this Section 9, each officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company with the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
SECTION 10. DEFAULT OF ONE OR MORE OF THE UNDERWRITERS.
If, on the First Closing Date or the Second Closing Date, if
any, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Common Shares that it or they have agreed to purchase
hereunder on such date, and the aggregate number of Common Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
does not exceed 10% of the aggregate number of the Common Shares to be purchased
on such date, the other Underwriter shall be obligated, severally, in the
proportions that the number of Firm Common Shares set forth opposite their
respective names on Schedule A bears to the aggregate number of Firm Common
Shares set forth opposite the names of such non-defaulting Underwriter to
purchase the Common Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If, on the First Closing
Date
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or the Second Closing Date, if any, as the case may be, any Underwriter shall
fail or refuse to purchase Common Shares and the aggregate number of Common
Shares with respect to which such default occurs exceeds 10% of the aggregate
number of Common Shares to be purchased on such date, and arrangements
satisfactory to the non-defaulting Underwriter and the Company for the purchase
of such Common Shares are not made within 48 hours after such default, this
Agreement shall terminate without liability of any party to any other party
except that the provisions of Section 4, Section 8 and Section 9 hereof shall at
all times be effective and shall survive such termination. In any such case
either the non-defaulting Underwriter or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
but in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be
deemed to include any person substituted for a defaulting Underwriter under this
Section 10. Any action taken under this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
SECTION 11. TERMINATION OF THIS AGREEMENT.
Prior to the First Closing Date this Agreement maybe
terminated by NMSI by notice given to the Company if at any time (i) trading or
quotation in any of the Company's securities shall have been suspended or
limited by the Commission or by The New York Stock Exchange, or trading in
securities generally on either the Nasdaq Stock Market or The New York Stock
Exchange shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock exchanges by the
Commission or the NASD; (ii) a general banking moratorium shall have been
declared by any of federal or state authorities; (iii) there shall have occurred
any outbreak or escalation of national or international hostilities or any
crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a
prospective substantial change in United States' or international political,
financial or economic conditions, as in the judgment of NMSI is material and
adverse and makes it impracticable to market the Common Shares in the manner and
on the terms described in the Prospectus or to enforce contracts for the sale of
securities; (iv) in the judgment of NMSI there shall have occurred any Material
Adverse Change; or (v) the Company shall have sustained a loss by strike, fire,
flood, earthquake, accident or other calamity of such character as in the
judgment of NMSI may interfere materially with the conduct of the business and
operations of the Company regardless of whether or not such loss shall have been
insured. Any termination pursuant to this Section 11 shall be without liability
on the part of (a) the Company to any Underwriter, except that the Company shall
be obligated to reimburse the expenses of the Underwriters pursuant to Sections
4 and 6 hereof, (b) any Underwriter to the Company, or (c) of any party hereto
to any other party except that the provisions of Section 8 and Section 9 hereof
shall at all times be effective and shall survive such termination.
SECTION 12. SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE
DELIVERY.
The respective indemnities, agreements, representations,
warranties and other statements of the Company, of its officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of its or their partners, officers or
directors
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27
or any controlling person, as the case may be, and will survive delivery of and
payment for the Common Shares sold hereunder. The provisions of Sections 3(c),
3(g), 6, 8, 9 and 11 shall survive the termination or cancellation of this
Agreement.
SECTION 13. NOTICES.
All communications hereunder shall be in writing and shall be
mailed, hand delivered, overnight couriered or telecopied and confirmed to the
parties hereto as follows:
If to NMSI:
NationsBanc Xxxxxxxxxx Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
NationsBanc Xxxxxxxxxx Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
and
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
If to the Company:
Windmere-Durable Holdings, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
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Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 14. SUCCESSORS.
This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to
Section 10 hereof, and to the benefit of the employees, officers and directors
and controlling persons referred to in Section 8 and Section 9 hereof, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Common Shares as such from any of the Underwriters merely by reason of
such purchase.
SECTION 15. PARTIAL UNENFORCEABILITY.
The invalidity or unenforceability of any Section, paragraph
or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
SECTION 16. GOVERNING LAW PROVISIONS.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES OF ANY JURISDICTION.
SECTION 17. GENERAL PROVISIONS.
This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The Table of
Contents and the Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business
person who was adequately represented by counsel during negotiations regarding
the provisions hereof, including, without limitation, the indemnification
provisions of Section 8 hereof and the contribution provisions of Section 9
hereof, and is fully informed regarding said provisions. Each of the parties
hereto further acknowledges that the provisions of Sections 8 and 9 hereto
fairly allocate the risks in light of the ability of the parties to investigate
the Company, its affairs and its business in order to assure that adequate
disclosure has been made in the Registration Statement, any Preliminary
Prospectus and the Prospectus (and any amendments and supplements thereto), as
required
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by the Securities Act and the Exchange Act.
[Signature page follows]
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
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Very truly yours,
WINDMERE-DURABLE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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The foregoing Agreement is hereby confirmed and accepted by
the Underwriters as of the date first above written.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Syndicate Director,
Managing Director
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XXXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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SCHEDULE A
Number of
Firm Common Shares
Underwriters to be Purchased
------------ ---------------
NationsBanc Xxxxxxxxxx Securities LLC ..................................... $1,520,500
---------
Xxxxxxx Xxxxx & Associates, Inc. .......................................... $1,520,500
---------
Total $3,041,000
==========
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EXHIBIT A
Opinion of counsel for the Company to be delivered pursuant to Section 5(d) of
the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any
supplements thereto at the Closing Date.
A-1
35
EXHIBIT B
LOCK-UP AGREEMENT
July 22, 1998
NationsBanc Xxxxxxxxxx Securities LLC
Xxxxxxx Xxxxx & Associates, Inc.
c/o NationsBanc Xxxxxxxxxx Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: Windmere-Durable Holdings, Inc. (the "Company")
Ladies and Gentlemen:
The undersigned is an owner of record or beneficially of
certain shares of common stock, par value $.10 per share, of the Company
("Common Stock") or securities convertible into or exchangeable or exercisable
for Common Stock. The Company proposes to carry out a public offering of Common
Stock (the "Offering") for which you will act as the underwriters. The
undersigned recognizes that the Offering will be of benefit to the undersigned
and will benefit the Company. The undersigned acknowledges that you and the
other underwriter are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering an into underwriting agreement with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby
agrees that the undersigned will not, without the prior written consent of
NationsBanc Xxxxxxxxxx Securities LLC (which consent may be withheld in its sole
discretion), directly or indirectly, sell, offer, contract or grant any option
to sell (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
otherwise dispose of any shares of Common Stock, options or warrants to acquire
shares of Common Stock, or securities exchangeable or exercisable for or
convertible into shares of Common Stock currently or hereafter owned either of
record or beneficially (as defined in Rule 13d-3 under the Exchange Act) by the
undersigned, enter into any swap or similar agreement that transfers, in whole
or in part, the economic risk of ownership of the Common Stock or publicly
announce the undersigned's intention to do any of the foregoing, for a period
commencing on the date hereof and continuing through the close of trading on the
date 120 days after the date of the Prospectus. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's transfer
agent and registrar against the transfer of shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock held by the
undersigned except in compliance with the foregoing restrictions.
B-1
36
With respect to the Offering only, the undersigned waives any
registration rights relating to registration under the Securities Act of any
Common Stock owned either of record or beneficially by the undersigned,
including any rights to receive notice of the Offering.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to enter into this letter agreement, and that, upon request,
the undersigned will execute any additional documents necessary or desirable in
connection with the enforcement hereof. This agreement is irrevocable and will
be binding on the undersigned and the respective successors, heirs, personal
representatives and assigns of the undersigned.
___________________________
Printed Name of Holder
By: _______________________
___________________________
Printed Name of Person Signing
(and indicate capacity of person signing if signing as
custodian, trustee or on behalf of an entity)
___________________________
(Social Security or Taxpayer Identification No.)
B-2
