EXHIBIT 1.2
EXECUTION COPY
PRICING AGREEMENT
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November 21, 2003
Deutsche Bank Securities Inc.
Banc of America Securities LLC
As Representatives of the several
Underwriters named in Schedule I hereto
Ladies and Gentlemen:
The Xxxxx Company, a Maryland corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated November 21, 2003 (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto
(the "Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein, and each of the
representations and warranties set forth therein shall be deemed to have
been made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of
the Underwriting Agreement shall be deemed to be a representation or
warranty as of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the Prospectus
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the
provisions of the Underwriting Agreement so incorporated by reference shall
be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Underwriters of the
Designated Securities pursuant to Section 12 of the Underwriting Agreement
and the address of the Representatives referred to in such Section 12 are
set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities,
in the form heretofore delivered to you is now proposed to be filed with
the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
time and place and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof (one for the Company
and one for each of the Representatives plus one for each counsel) and upon
acceptance hereof by you, on behalf of each of the Underwriters,
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this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement between each of the Underwriters and the Company.
Very truly yours,
THE XXXXX COMPANY
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and Assistant
Treasurer
Accepted as of the date hereof
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Principal
On behalf of themselves and each of the other Underwriters
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SCHEDULE I
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Principal Amount
of Designated
Underwriter Securities to be Purchased
Deutsche Bank Securities Inc. $157,500,000
Banc of America Securities LLC $ 87,500,000
JPMorgan Securities Inc. $ 21,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx $ 21,000,000
Incorporated
UBS Investment Bank $ 21,000,000
Banc One Capital Markets, Inc. $ 10,500,000
McDonald Investments Inc. $ 10,500,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. $ 10,500,000
Xxxxx Fargo Brokerage Services, LLC $ 10,500,000
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Total $350,000,000
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SCHEDULE II
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TITLE OF DESIGNATED SECURITIES:
5.375% Notes due 2013
AGGREGATE PRINCIPAL AMOUNT:
$350,000,000
PRICE TO PUBLIC:
100% of the principal amount of the Designated Securities, plus
accrued interest, if any, from November 26, 2003
PURCHASE PRICE BY UNDERWRITERS:
99.35% of the principal amount of the Designated Securities, plus
accrued interest, if any, from November 26, 2003
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal or other same day funds
TIME OF DELIVERY:
9:30 a.m. (New York City time), November 26, 2003
INDENTURE:
Indenture, dated as of February 24, 1995 (the "Indenture") between the
Company and X.X. Xxxxxx Trust Company, National Association (as
successor to Bank One, National Association, formerly known as the
First National Bank of Chicago), as Trustee
MATURITY:
November 26, 2013
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INTEREST RATE:
5.375% per annum
INTEREST PAYMENT DATES:
May 26 and November 26, beginning on May 26, 2004
REDEMPTION PROVISIONS:
The Designated Securities may be redeemed, in whole or in part, at any
time at the option of the Company, for a Make-Whole Price (as
described in the Prospectus Supplement dated the date hereof relating
to the Designated Securities)
SINKING FUND PROVISIONS:
None.
CONVERTIBILITY OR EXCHANGEABILITY PROVISIONS:
None.
DEFEASANCE PROVISIONS:
As set forth in the Indenture.
OTHER TERMS:
For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, (i) the
modifications set forth under the caption "Description of the
Notes--Covenants" in the prospectus supplement dated November 21, 2003
relating to the Designated Securities (the "Prospectus Supplement"),
will apply to the covenants set forth under "Description of Debt
Securities--Certain Covenants--Limitation on the Incurrence of Debt" in
the Prospectus and (ii) the additional covenants set forth under the
caption "Description of the Notes--Covenants" in the Prospectus
Supplement will also apply.
For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, the definitions
set forth under the caption "Description of the Notes--Certain
Definitions" in the Prospectus Supplement will apply and supersede any
conflicting definitions contained in the Indenture.
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For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, the modifications
set forth under the caption "Description of the Notes - Consolidation,
Merger, Sale, Conveyance and Lease" in the Prospectus Supplement will
apply to the provisions set forth under the caption "Description of
the Notes - Consolidation, Merger, Sale, Conveyance and Lease" in the
Prospectus.
For purposes of the Designated Securities and, insofar as used with
respect to the Designated Securities, the Indenture, the following
shall replace clause (5) of Section 501 of the Indenture:
(5) a default under any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or
by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has
guaranteed or for which the Company is directly
responsible or liable as obligor or guarantor) (including
a default with respect to Securities of any series other
than that series) having an aggregate principal amount
outstanding of at least $10,000,000, whether such
indebtedness now exists or shall hereafter be created,
which default shall have resulted from the failure to pay
such indebtedness at its maturity or shall have resulted
in such indebtedness being declared due and payable prior
to the date on which it would otherwise have become due
and payable, without such acceleration having been
rescinded or annulled, within a period of 10 days after
there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the
Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of
Default" hereunder; or
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Deutsche Bank Securities Inc.
Banc of America Securities LLC
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Address for Notices, etc.:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Debt Xxxxxxx Xxxxxxx, 0xx Xxxxx
-xxx-
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Head, Debt Capital Markets
UNDERWRITERS COUNSEL:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
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