NEWELL RUBBERMAID INC. $500,000,000 5.50% Notes Due 2013 $250,000,000 6.25% Notes Due 2018 Underwriting Agreement
Exhibit 1.1
EXECUTION COPY
XXXXXX RUBBERMAID INC.
$500,000,000 5.50% Notes Due 2013
$250,000,000 6.25% Notes Due 2018
$500,000,000 5.50% Notes Due 2013
$250,000,000 6.25% Notes Due 2018
Underwriting Agreement
March 25, 2008
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Xxxxxx Rubbermaid Inc., a Delaware corporation (the “Company”), proposes to sell, severally
and not jointly, to the underwriters named in Schedule II hereto (the “Underwriters”), for whom you
(the “Representatives”) are acting as representatives, the principal amount of its 5.50% Notes Due
2013 (the “2013 Securities”) and its 6.25% Notes Due 2018 identified in Schedule I hereto (the
“2018 Securities” and, together with the 2013 Securities, the “Securities”), to be issued under the
senior indenture (the “Indenture”) dated as of November 1, 1995, between Xxxxxx Rubbermaid Inc.
(formerly Newell Co.) and The Bank of New York Trust Company, N.A. (as successor to JPMorgan Chase
Bank, formerly The Chase Manhattan Bank (National Association)), as trustee (the “Trustee”),
relating to senior debt securities. If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms “Underwriters” and “Representatives,”
as used herein, shall each be deemed to refer to such firm or firms.
The Company has filed with the Securities and Exchange Commission (the “SEC”) a registration
statement on Form S-3 (No. 333-149887) for the registration of securities, including the
Securities, under the Securities Act of 1933, as amended (the “1933 Act”), and the offering of such
Securities from time to time in accordance with Rule 415 of the rules and regulations of the SEC
under the 1933 Act (the “1933 Act Regulations”). Such registration statement has become effective,
and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “1939
Act”). Such registration statement, as used with respect to the Securities, including the
information deemed a part thereof pursuant to Rule 430B(f)(1) under the 1933 Act, on the date of
such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such
Section applies to the Company and the Underwriters for the Securities pursuant to Rule 430B(f)(2)
under the 1933 Act (the “Effective Date”), including the
exhibits thereto and all documents incorporated therein by reference pursuant to Item 12 of
Form
S-3 at the Effective Date, is hereinafter referred to as the “Registration Statement”; the
base prospectus relating to the Securities in the form in which it has most recently been filed
with the SEC on or prior to the date hereof being herein called the “Basic Prospectus”; the Basic
Prospectus as amended and supplemented by a preliminary prospectus supplement relating to the
Securities and as further amended and supplemented immediately prior to the time set forth on
Schedule I as the “Applicable Time” (the “Applicable Time”) is hereinafter called the
“Pricing Prospectus”; the Basic Prospectus as amended or supplemented in final form, which is filed
with the SEC pursuant to Rule 424(b) under the 1933 Act with respect to the Securities is
hereinafter called the “Final Supplemented Prospectus”; any reference herein to the Basic
Prospectus, any Pricing Prospectus or any Final Supplemented Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under
the 1933 Act, as of the date of such Basic Prospectus, Pricing Prospectus or Final Supplemented
Prospectus, as the case may be; any reference to any amendment or supplement to the Basic
Prospectus, any Pricing Prospectus or any Final Supplemented Prospectus shall be deemed to refer to
and include any documents filed after the date of such Basic Prospectus, Pricing Prospectus or
Final Supplemented Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the “1934 Act”), and incorporated by reference in such Basic Prospectus, Pricing
Prospectus or Final Supplemented Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual report of the Company
filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration Statement. The
Pricing Prospectus and any Permitted Free Writing Prospectus (as defined below) listed on Annex A
hereto, taken together, are referred to as the “Pricing Disclosure Package.”
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the underwriters to properly identify their respective clients.
1. Representations and Warranties.
(a) Representations and Warranties. The Company represents and warrants to the
Underwriters as of the date hereof and as of the Closing Date (as defined below) (each of the
Closing Date and the date hereof being referred to as a “Representation Date”), as follows:
(i) Due Incorporation and Qualification. The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own, lease and operate its properties and to conduct its business
as described in the Pricing Disclosure Package and the Final Supplemented Prospectus and to enter
into and perform its obligations under this Agreement, the Indenture and the Securities; and the
Company 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 where the
failure to so qualify or be in good standing would not have a material adverse effect on the
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condition, financial or otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise (a “Material Adverse Effect”).
(ii) Subsidiaries. Each subsidiary of the Company which is a significant subsidiary
as defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act (each a “Significant
Subsidiary”) has been duly incorporated and is validly existing as a corporation (or, in the case
of a Significant Subsidiary that is not a corporation, duly formed or organized, as the case may
be, as the applicable type of entity) in good standing under the laws of the jurisdiction of its
incorporation (or, if applicable, formation or organization), has power and authority to own, lease
and operate its properties and to conduct its business as described in the Pricing Disclosure
Package and the Final Supplemented Prospectus and is duly qualified as a foreign corporation (or
applicable type of entity) 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 where the failure to so qualify or be in good standing would not
have a Material Adverse Effect; and all of the issued and outstanding capital stock (or, in the
case of a Significant Subsidiary that is not a corporation, the partnership, membership, joint
venture or other ownership or equity interests), owned directly or indirectly by the Company, of
each Significant Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is so owned free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(iii) Registration Statement and Prospectus. The Registration Statement complies and
the Final Supplemented Prospectus will comply, and any further amendments or supplements thereto,
when any such amendments become effective or supplements are filed with the SEC, as the case may
be, will comply, in all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the SEC under the 1939 Act (the “1939
Act Regulations”) and the Registration Statement, the Pricing Disclosure Package and the Final
Supplemented Prospectus do not and will not, (A) as of the Effective Date as to the Registration
Statement and any amendment thereto, (B) as of the Applicable Time as to the Pricing Disclosure
Package and (C) as of the date of the Final Supplemented Prospectus as to the Final Supplemented
Prospectus or as of the date when any supplement is filed as to the Final Supplemented Prospectus
as further supplemented, contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the case of the
Registration Statement and any amendment thereto, and, in the light of the circumstances under
which they were made, not misleading in the case of the Pricing Disclosure Package and the Final
Supplemented Prospectus as further supplemented; except that the Company makes no representations
or warranties with respect to (1) that part of the Registration Statement which shall constitute
the Statements of Eligibility (Form T-1) under the Trust Indenture Act or (2) statements or
omissions made in a Permitted Free Writing Prospectus, the Registration Statement, the Pricing
Prospectus or the Final Supplemented Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters through the Representatives expressly for
use therein it being understood and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such on Schedule I hereof. Each
Permitted Free Writing Prospectus does not include anything that conflicts with the
information contained in the Registration Statement, the Pricing
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Prospectus or the Final
Supplemented Prospectus, and each such Permitted Free Writing Prospectus, as supplemented by and
taken together with the Pricing Disclosure Package as of the Applicable Time, will not contain an
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,
except that the Company makes no representation or warranty with respect to any statement or
omissions made in a Permitted Free Writing Prospectus in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters through the Representatives
expressly for use therein. The Pricing Disclosure Package and each electronic road show, when
taken together as a whole with the Pricing Disclosure Package, does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Pricing Disclosure
Package based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such on Schedule I hereof.
(iv) Incorporated Documents. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or the Pricing Prospectus, at the time they were filed
with the SEC, complied in all material respects with the requirements of the 1934 Act and the rules
and regulations promulgated thereunder (the “1934 Act Regulations”), and as of such time of filing,
when read together with the Pricing Prospectus and any Permitted Free Writing Prospectus, none of
such documents contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Final Supplemented Prospectus or any further amendment or
supplement thereto, when such documents are filed with the SEC, will comply in all material
respects with the requirements of the 1934 Act and the 1934 Act Regulations, and when read together
with the Final Supplemented Prospectus as it otherwise may be amended or supplemented, will not
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(v) Well Known Seasoned Issuer. (A) At the time of filing the Registration Statement,
(B) at the time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the
time the Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163,
and (D) at the Applicable Time (with such date being used as the determination date for purposes of
this clause (D)), the Company was or is (as the case may be) a “well-known seasoned issuer” as
defined in Rule 405. The Company agrees to pay the fees
required by the SEC relating to the Securities within the time required by Rule
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456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(vi) Accountants. Ernst & Young LLP, who audited certain financial statements of the
Company and its consolidated subsidiaries, was, at the time of such audit, an independent
registered public accounting firm with respect to the Company within the meaning of the 1933 Act
and the 1933 Act Regulations and under the applicable rules and regulations of the Public Company
Accounting Oversight Board.
(vii) Financial Statements. The financial statements included or incorporated by
reference in the Registration Statement, the Pricing Prospectus, the Pricing Disclosure Package and
the Final Supplemented Prospectus present fairly the consolidated financial position of the Company
and its consolidated subsidiaries as at the dates indicated and the consolidated results of their
operations for the periods specified; except as otherwise stated in the Registration Statement, the
Pricing Prospectus, the Pricing Disclosure Package and the Final Supplemented Prospectus, said
financial statements have been prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis; and the supporting schedules included or
incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus present fairly the information required to be stated therein.
(viii) Authorization and Validity of this Agreement, the Indenture and the Securities.
This Agreement has been duly and validly authorized, executed and delivered by the Company; the
Indenture has been duly and validly authorized, executed and delivered by the Company and is a
valid and binding obligation of the Company enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors’ rights generally or by general
equity principles; the Securities have been duly and validly authorized for issuance, offer and
sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement, the Indenture and the Officers’ Certificates with respect to the
Securities heretofore delivered by the Company to the Trustee (the “Officers’ Certificates”)
against payment of the consideration therefor specified in the Pricing Disclosure Package and the
Final Supplemented Prospectus, the Securities will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors’ rights generally or by general equity principles; the
Securities and the Indenture will be substantially in the form heretofore delivered to the
Underwriters, and each holder of the Securities will be entitled to the benefits provided by the
Indenture.
(ix) Material Changes or Material Transactions. Since the respective dates as of
which information is given in the Registration Statement, the Pricing Disclosure Package and the
Final Supplemented Prospectus, except as may otherwise be stated therein or contemplated thereby,
(A) there has been no material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
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business, (B) there have been no transactions entered into by the Company or any of its
subsidiaries that are material to the Company and its subsidiaries considered as one enterprise,
other than those in the ordinary course of business, and (C) except for regular dividends on the
Company’s common stock or preferred stock in amounts per share that are consistent with past
practices or the applicable charter document or supplement thereto, respectively, there has been no
dividend or distribution of any kind declared, paid or made by the Company on any class of its
capital stock.
(x) Description of the Securities and the Indenture. The Securities and the Indenture
will conform in all material respects to the respective statements relating thereto contained in
the Pricing Disclosure Package and the Final Supplemented Prospectus and will be in substantially
the respective forms filed or incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xi) No Defaults. Neither the Company nor any of its Significant Subsidiaries is in
violation of its charter or in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any of its Significant Subsidiaries is
subject, except when such default would not have a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the Securities, the compliance by the
Company with its obligations hereunder and thereunder and the consummation of the transactions
contemplated herein, therein and in the Registration Statement, the Pricing Disclosure Package and
the Final Supplemented Prospectus (including the issuance and sale of the Securities and the use of
proceeds from the sale of the Securities as described in the Pricing Disclosure Package and the
Final Supplemented Prospectus under the caption “Use of Proceeds”), 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 Significant
Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any such subsidiary is subject, nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or any law, administrative
regulation or administrative or court order or decree of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the Company.
(xii) Catastrophic Events. The Company has not sustained a loss on account of fire,
flood, accident, terrorism or other calamity which materially and adversely affects the business of
the Company and its subsidiaries taken as a whole as disclosed in the Registration Statement, the
Pricing Disclosure Package and the Final Supplemented Prospectus, regardless of whether or not such
loss shall have been insured.
(xiii) Legal Proceedings; Contracts. Except as set forth in the Registration
Statement, the Pricing Disclosure Package and the Final Supplemented Prospectus, there is no
action, suit or proceeding before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which will, in the opinion of the Company,
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result in any Material Adverse Effect or will materially and adversely affect the performance
by the Company of its obligations under this Agreement; and there are no contracts or documents of
the Company or any of its subsidiaries which are required to be filed or incorporated by reference
as exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Regulations which have
not been so filed or incorporated by reference.
(xiv) Environmental Laws. Except as would not, singly or in the aggregate, result in
a Material Adverse Effect, and other than as described or incorporated by reference in the Pricing
Disclosure Package and the Final Supplemented Prospectus, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent decree or judgment,
relating to pollution or protection of human health, 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 the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, “Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or, to the Company’s or any of its
subsidiaries’ knowledge, threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings
relating to any Environmental Law against the Company or any of its subsidiaries and (D) there are
no events or circumstances that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or Environmental Laws.
(xv) No Authorization, Approval or Consent Required. No authorization, approval,
consent, order or decree of any court or governmental agency or body including the SEC is required
for the consummation by the Company of the transactions contemplated by this Agreement or in
connection with the sale of the Securities hereunder, except such as have been obtained or
rendered, as the case may be, or as may be required under state securities (“Blue Sky”) laws.
(xvi) Inapplicability of Investment Company Act of 1940. The Company is not, and
after giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Pricing Disclosure Package and the Final Prospectus Supplement, will
not be an “investment company” or “business development company” within the meaning of the
Investment Company Act of 1940, as amended, including the rules and regulations related thereto.
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(xvii) Commodity Exchange Act. The Securities, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the Indenture, will be excluded or
exempted under the provisions of the Commodity Exchange Act.
(xviii) Foreign Corrupt Practices Act Compliance. Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has taken any action, directly
or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce
corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of
any money, or other property, gift, promise to give, or authorization of the giving of anything of
value to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the
FCPA; and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(xix) Anti-Money Laundering Compliance. The operations of the Company and its
subsidiaries are and have been conducted at all times in material compliance with applicable
financial recordkeeping and reporting requirements and the money laundering statutes and the rules
and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xx) Anti-Terrorism Compliance. Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company
or any of its subsidiaries is currently subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC.
(xxi) Ratings. As of the date hereof, the senior unsecured long term debt of the
Company is rated Baa2 by Xxxxx’x Investors Service, Inc. (“Moody’s”), BBB by Fitch Inc. (“Fitch”)
and BBB+ by Standard & Poor’s Ratings Services (“S&P”).
(xxii) Internal Controls. The Company and each of its Significant Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of
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financial
statements in conformity with generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. The Company and its subsidiaries’ internal controls over financial reporting are
effective and the Company and its subsidiaries are not aware of any material weakness in their
internal controls over financial reporting. The Company and its subsidiaries maintain “disclosure
controls and procedures” (as such term is defined in Rule 13a-15(e) under the 1934 Act); such
disclosure controls and procedures are effective. There is and has been no failure on the part of
the Company and any of the Company’s directors or officers, in their capacities as such, to comply
in any material respect with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402
relating to loans and Sections 302 and 906 relating to certifications.
(xxiii) Issuer Status. At the determination date for purposes of the Securities
within the meaning of Rule 164(h) under the 1933 Act, the Company was not an “ineligible issuer” as
defined in Rule 405 under the 1933 Act.
(b) Additional Certifications. Any certificate signed by any director or officer of
the Company and delivered to an Underwriter or to counsel for the Underwriters in connection with
the offering or sale of the Securities shall be deemed a representation and warranty by the Company
to the Underwriters as to the matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
2. Purchase and Sale.
Subject to the terms and conditions and in reliance upon the representations and warranties
set forth herein, the Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such Underwriter’s name
in Schedule II hereto. The Underwriters may engage the services of any other broker or dealer in
connection with the resale of any of the Securities purchased by them and may allow all or any
portion of the discount received in connection with such purchases from the Company to such brokers
and dealers.
3. Delivery and Payment.
Delivery of and payment for the Securities shall be made on the date and at the time specified
in Schedule I hereto (or such later date not later than five business days after such specified
date as the Representatives shall designate), which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 10 hereof (such date and time
of delivery and payment for the Securities being herein called the “Closing Date”). Delivery of
the Securities shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer in Federal (same day)
funds. Delivery of the Securities shall be made at such location as
the Representatives shall reasonably designate at least one business day in advance of the
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Closing Date and payment for the Securities shall be made at the office specified in Schedule I
hereto. Certificates for the Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for inspection, checking and packaging by
the Representatives in New York, New York, not later than 1:00 PM on the business day prior to the
Closing Date.
4. Free Writing Prospectuses.
(a) The Company represents and agrees that it has not made and will not make any offer
relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405
under the 1933 Act, other than each “free writing prospectus” listed on Annex A hereto or
subsequently consented to in writing by the Representatives (each, a “Permitted Free Writing
Prospectus”).
(b) Each Underwriter, severally and not jointly, represents and agrees that, without the prior
consent of the Company and the Representatives, it has not made and will not make any offer
relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405
under the 1933 Act, other than a Permitted Free Writing Prospectus or a free writing prospectus
that is not required to be filed by the Company pursuant to Rule 433 or one or more free writing
prospectuses through customary Bloomberg distribution that do not contain substantive changes from
or additions to the information contained in the Permitted Free Writing Prospectus attached hereto
as Annex A.
(c) The Company agrees to prepare a pricing term sheet, substantially in the form attached
hereto as Annex B, and approved by the Representatives, and to file such pricing term sheet
pursuant to Rule 433(d) under the 1933 Act within the time period prescribed by such Rule.
(d) The Company has complied and will comply with the requirements of Rule 433 under the 1933
Act applicable to any free writing prospectus, including timely SEC filing where required and
legending.
(e) The Company agrees that if at any time following issuance of a Permitted Free Writing
Prospectus any event occurred or occurs as a result of which such Permitted Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Final Supplemented Prospectus or include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light of the circumstances
then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives
and, if requested by the Representatives, will prepare and furnish without charge to each
Underwriter a free writing prospectus or other document, the use of which has been consented to by
the Representatives, which will correct such conflict, statement or omission; provided, however,
that this representation and warranty shall not apply to any statements or omissions in a Permitted
Free Writing Prospectus made in reliance upon and
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in conformity with information furnished in writing to the Company by an Underwriter through the
Representatives, expressly for use therein.
(f) The Company agrees that if there occurs an event or development as a result of which the
Pricing Disclosure Package would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in light of the circumstances
then prevailing, not misleading, the Company will promptly notify the Representatives so that any
use of the Pricing Disclosure Package may cease until it is amended or supplemented.
5. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Notice of Certain Events. The Company will notify the Underwriters immediately of
(i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the
SEC for filing of the Final Supplemented Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Final Supplemented Prospectus, (iii) the
receipt of any comments from the SEC with respect to the Registration Statement or the Final
Supplemented Prospectus, including any document incorporated by reference therein, (iv) any request
by the SEC for any amendment to the Registration Statement or any amendment or supplement to the
Final Supplemented Prospectus or for additional information, and (v) the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment. In addition, after learning of either such event, the Company will
forthwith notify the Underwriters if the rating assigned to any debt securities of the Company by
any nationally recognized securities rating agency shall have been lowered, or if any such rating
agency shall have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any debt securities of the Company.
(b) Notice of Certain Proposed Filings. The Company will give the Underwriters notice
of its intention to file or prepare any additional registration statement with respect to the
registration of additional Securities, any amendment to the Registration Statement (including any
filing under Rule 462(b)) or any amendment or supplement to the Final Supplemented Prospectus
(other than a supplement providing solely for the specification of the interest rates or formulas
and issuance prices of the Securities sold pursuant hereto), whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the Underwriters with copies
of any such amendment or supplement or other documents proposed to be filed or used a reasonable
time in advance of such proposed filing or use, as the case may be.
(c) Copies of the Registration Statement and Prospectus. The Company will deliver to
each Underwriter as many signed and conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Final
Supplemented Prospectus) as each Underwriter may reasonably request. The Company will
11
furnish
to each Underwriter as many copies of the Pricing Prospectus, any Permitted Free Writing Prospectus
and the Final Supplemented Prospectus (as amended or supplemented) as each Underwriter shall
reasonably request so long as the requesting Underwriter is required to deliver the Pricing
Prospectus, any Permitted Free Writing Prospectus and the Final Supplemented Prospectus in
connection with sales or solicitations of offers to purchase Securities. The Registration
Statement, the Pricing Prospectus, any Permitted Free Writing Prospectus and the Final Supplemented
Prospectus and any amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the SEC pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(d) Preparation of Prospectus Supplements. The Company will prepare, with respect to
the Securities to be sold to the Underwriters pursuant to this Agreement, a Prospectus Supplement
with respect to such Securities and will file such Prospectus Supplement pursuant to Rule 424(b)
under the 1933 Act within the time period prescribed therefor under Rule 424(b).
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and
the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as
contemplated by this Agreement and the Final Supplemented Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it is necessary, in the opinion
of counsel for the Underwriters or for the Company, to amend the Registration Statement or amend or
supplement the Final Supplemented Prospectus in order that the Final Supplemented Prospectus will
not include any untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or supplement the Final
Supplemented Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the SEC, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or omission or to make the
Registration Statement or the Final Supplemented Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment or supplement as
the Underwriters may reasonably request.
(f) Earnings Statements. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security holders as soon as
practicable an earnings statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(g) Blue Sky Qualifications. The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as the Underwriters may designate, and
will maintain such qualifications in effect for as long as may be required for the distribution of
the Securities; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation in any
jurisdiction
12
in which it is not so qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the Securities have been qualified as
above provided. The Company will promptly advise the Underwriters of the receipt by the Company of
any notification with respect to the suspension of the qualification of any of the Securities for
sale in any such state or jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(h) Lock Up. The Company will not, without the prior written consent of the
Underwriters, offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in privity with the Company
or any affiliate of the Company), directly or indirectly, including the filing (or participation in
the filing) of a registration statement with the Commission in respect of, or establish or increase
a put equivalent position or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the 1934 Act, any debt securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such transaction, until following the
Closing Date.
(i) Stabilization. The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or result in,
under the 1934 Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(j) 1934 Act Filings. The Company, during the period when the Final Supplemented
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the SEC pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(k) No Fiduciary Duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the Underwriters in connection with the offering and
the process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees that it will not
claim that the Underwriters have rendered advisory services of any nature or respect, or owe an
agency, fiduciary or similar duty to the Company, in connection with such transaction or the
process leading thereto.
(l) Use of Proceeds. The Company will use the net proceeds received by it from the
issuance and sale of the Securities in the manner specified in the Registration Statement, the
Pricing Disclosure Package and the Final Supplemented Prospectus.
13
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities from the Company shall be
subject to the accuracy of the representations and warranties on the part of the Company herein
contained as of the date hereof and the Closing Date, and to the accuracy of the statements of the
Company’s officers made in any certificate furnished pursuant to the provisions hereof relating to
such Securities, to the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions precedent:
(a) Legal Opinions. The Underwriters shall have received the following legal
opinions, dated as of the Closing Date, and otherwise in form and substance satisfactory to the
Underwriters:
(1) Opinion of General Counsel of Company. The opinion of the General Counsel of the
Company to the effect that:
(i) Each Significant Subsidiary organized under the laws of a U.S. jurisdiction is validly
existing in good standing under the laws of the jurisdiction of its organization and, to the best
of such counsel’s knowledge, each of the Company and each Significant Subsidiary is duly qualified
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 where the failure to so qualify or be in good standing would not have a Material Adverse
Effect.
(ii) Each Significant Subsidiary has the power and authority to own, lease and operate its
properties and to conduct its business as currently conducted and as described in the Pricing
Disclosure Package and the Final Supplemented Prospectus.
(iii) To the best of such counsel’s knowledge, there are no legal or governmental proceedings
before any court or governmental agency, authority or body or any arbitrator pending or threatened
which are required to be disclosed in the Pricing Disclosure Package and the Final Supplemented
Prospectus, other than those disclosed therein.
(iv) The execution and delivery by the Company of this Agreement, the Indenture and the
Securities, the performance by the Company of its agreements herein and therein and the incurrence
by the Company of the indebtedness to be evidenced by the Securities 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 Significant Subsidiary
under any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to
such counsel and to which the Company or any Significant Subsidiary is a party or by which any of
them are bound or to which any property or assets of the Company or any such Significant Subsidiary
is subject.
(v) The Company’s authorized and outstanding equity capitalization is as set forth in the
Pricing Disclosure Package and the Final Supplemented Prospectus as of the date or dates indicated
herein; and the Securities conform in all material respects to the
14
description thereof contained in the Pricing Disclosure Package and the Final Supplemented
Prospectus.
(vi) The Company is not, and after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the Pricing Disclosure Package and the
Final Supplemental Prospectus, will not be an “investment company” or a “business development
company” within the meaning of the Investment Company Act of 1940, as amended, including the rules
and regulations related thereto.
(vii) No holders of securities of the Company have rights to the registration of such
securities under the Registration Statement.
(2) Opinion of Company Counsel. The opinion of Xxxxxx Xxxxxx LLP, counsel to the
Company, to the effect that:
(i) The Company and each Significant Subsidiary organized under the laws of a U.S.
jurisdiction is validly existing and in good standing under the laws of the jurisdiction of its
incorporation (or, if applicable, formation or organization).
(ii) The Company has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Pricing Disclosure Package and the Final
Supplemented Prospectus and to enter into and perform its obligations under this Agreement, the
Indenture and the Securities.
(iii) The Company is duly qualified to transact business as a foreign corporation and is in
good standing under the laws of the State of Georgia.
(iv) The execution, delivery and performance of this Agreement has been duly authorized by all
necessary corporate action on the part of the Company and this Agreement has been duly executed and
delivered by the Company.
(v) The execution, delivery and performance of the Indenture have been duly authorized by all
necessary corporate action by the Company and the Indenture has been duly executed and delivered by
the Company and (assuming the Indenture has been duly authorized, executed and delivered by the
Trustee) constitutes a legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or
affecting enforcement of creditors’ rights generally, or by general equity principles (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(vi) The forms of the Securities filed as exhibits to the Registration Statement or a Current
Report on Form 8-K comply with the requirements of the Indenture applicable thereto; the Securities
have been duly authorized for issuance, offer and sale pursuant to this Agreement and, when issued,
authenticated and delivered pursuant to the provisions of this Agreement, the Indenture and the
Officers’ Certificates and Company Order against payment of the consideration therefor, will
constitute legal, valid and binding obligations
15
of the Company, enforceable in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws relating to or affecting enforcement of creditors’ rights generally or by general
equity principles (regardless of whether enforcement is considered in a proceeding in equity or at
law); and each holder of Securities will be entitled to the benefits of the Indenture.
(vii) The information in the Pricing Disclosure Package and the Final Supplemented Prospectus
under the captions “Description of the Notes,” “Description of Debt Securities,” “Particular Terms
of the Senior Debt Securities” and “Description of Capital Stock,” to the extent that it
constitutes matters of law, summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by such counsel and is correct in all material respects.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the 1933 Act and, to the best of such
counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act nor have any proceedings therefor been initiated or threatened by
the SEC; if filing of the Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Supplemented Prospectus, and any such supplement, shall have
been filed in the manner and within the time period required by Rule 424(b).
(x) At the time it became effective, the Registration Statement (other than the financial
statements and related schedules and other financial information included or incorporated by
reference therein), complied as to form in all material respects with the requirements of the 1933
Act, the 1939 Act and the regulations under each of those Acts.
(xi) The execution and delivery by the Company of this Agreement, the Indenture and the
Securities, the performance by the Company of its agreements herein and therein and the incurrence
by the Company of the indebtedness to be evidenced by the Securities will not violate 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 pursuant to, any Material Contract, nor will
such action result in any violation of the provisions of the charter or by-laws of the Company or
any applicable law or any administrative regulation or administrative or court order or decree of
any court or governmental agency, authority or body or any arbitrator having jurisdiction over the
Company that is listed in the officer’s certificate attached to such opinion. For purposes of the
preceding sentence, “Material Contract” shall mean each indenture, loan agreement, contract,
agreement or arrangement, as each shall have been amended to the date of such opinion, filed as an
exhibit to, or incorporated by reference in, the most recent Annual Report to the SEC on Form 10-K
of the Company or any report filed since the date of such report with the SEC under Section 13 of
the 1934 Act.
(xii) To such counsel’s knowledge, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents required to be described or referred to
in the Registration Statement, Pricing Disclosure Package or Final
16
Supplemented Prospectus or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto.
(xiii) No authorization, consent, approval, order or decree of any court or governmental
agency or body including the SEC is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with the sale of the Securities
hereunder, except such as may be required under the 1933 Act, the 1933 Act Regulations, the 1939
Act, the 1939 Act Regulations or state securities laws.
(xiv) Each document filed pursuant to the 1934 Act and incorporated by reference in the
Registration Statement, the Pricing Prospectus and the Final Supplemented Prospectus (other than
the financial statements and related schedules and other financial information included or
incorporated by reference therein) complied when filed or, if amended, when so amended, as to form
in all material respects with the 1934 Act and the 1934 Act Regulations.
(3) Opinion of Counsel to the Underwriters. The opinion of Xxxxxxx & Xxxxxx LLP,
counsel to the Underwriters, covering the matters referred to in subparagraph (2) under the
subheadings (i) (solely with respect to the Company) and (vi) to (xi).
(4) Reliance by Counsel. In rendering their opinion, the General Counsel of the
Company and Xxxxxx Xxxxxx LLP may rely (A) as to matters involving the application of laws of any
jurisdiction other than the States of Delaware and Illinois or the United States, to the extent
deemed proper and specified in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent deemed proper, on certificates of responsible officers of the
Company and public officials.
(5) Disclosure. In giving their opinions required by subsections (a)(1), (a)(2) and
(a)(3) of this Section, the General Counsel of the Company, Xxxxxx Xxxxxx LLP and Winston & Xxxxxx
LLP, respectively, shall each additionally state that nothing has come to their attention that
causes them to believe that the Registration Statement (other than the financial statements and
related schedules and other financial information included or incorporated by reference therein),
at each Effective Date and at the date hereof and at the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or that the Pricing
Disclosure Package at the Applicable Time (other than the financial statements and related
schedules and other financial information included or incorporated by reference therein) and the
Final Supplemented Prospectus (other than the financial statements and related schedules and other
financial information included or incorporated by reference therein), at the date hereof and at the
Closing Date (included or) includes an untrue statement of a material fact or (omitted or) omits 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.
The Company hereby requests that counsel render the opinions provided for in Sections 6(a)(l)
and 6(a)(2) of this Agreement, on its behalf.
17
(b) Officer’s Certificate. On the date hereof and on the Closing Date there shall not
have been since the respective dates as of which information is given in the Registration
Statement, the Pricing Disclosure Package and the Final Supplemented Prospectus, any material
adverse change in the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business; and the Underwriters shall have received a certificate
or certificates of the chief financial officer, the treasurer or any assistant treasurer of the
Company, dated as of the Closing Date, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Company contained in Section 1
hereof are true and correct with the same force and effect as though expressly made at and as of
the Closing Date, (iii) the Company has performed or complied with all agreements and satisfied all
conditions on its part to be performed, complied with or satisfied hereunder at or prior to the
Closing Date, and (iv) no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. The Company shall have requested and caused Ernst & Young LLP to
have furnished to the Representatives, a letter, dated as of each Representation Date, and
otherwise in form and substance satisfactory to the Representatives, confirming that they are an
independent registered public accounting firm within the meaning of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and that they have performed a review of the
audited financial information of the Company for the year ended December 31, 2007.
(d) Ratings. With respect to the purchase of the Securities by the Underwriters, none
of Xxxxx’x, S&P or Fitch shall have lowered its rating as to the Securities since the date on which
the Company agreed to issue and sell the Securities nor, since such date, shall any of such rating
agencies have publicly announced (other than a reaffirmation of a previous announcement) that it
has under a surveillance or review with possible negative implications its rating of the
Securities.
(e) Additional Information. Prior to the Closing Date the Company shall have
furnished to the Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(f) Ranking. The Securities are not junior or subordinated to any other indebtedness
of the Company.
(g) Other Documents. On the date hereof and on the Closing Date, counsel to the
Underwriters shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the issuance and sale of
the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Underwriters and to counsel to the Underwriters.
18
If any condition specified in this Section 6 shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the
Company (in writing, or orally if promptly confirmed in writing) at any time and any such
termination shall be without liability of any party to any other party, except that the covenant
regarding the provision of an earnings statement set forth in Section 5(f) hereof, the provisions
concerning payment of expenses set forth in Section 9 hereof, the indemnity and contribution
agreements set forth in Section 8 hereof, the provisions concerning the representations, warranties
and agreements to survive delivery set forth in Section 11 hereof and the provisions concerning
governing law and forum set forth in Section 15 hereof shall remain in effect.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Winston & Xxxxxx LLP, counsel for the Underwriters, at 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000, on the applicable Representation Date.
7. Reimbursement of Underwriters’ Expenses.
If the sale of the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 12 hereof or because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the proposed purchase and sale
of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the 1933 Act or the 1934 Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
1933 Act, the 1934 Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities as originally filed
or in any amendment thereof, or in the Basic Prospectus, any preliminary prospectus relating to the
Securities, the Pricing Prospectus, any Permitted Free Writing Prospectus, any issuer free writing
prospectus or the information contained in the final term sheets required to be prepared and filed
pursuant to Section 4(c) hereto or the Final Supplemented Prospectus, or in any amendment thereof
or supplement thereto, or arise out of or are 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, and agrees to reimburse each such indemnified party, as incurred, for any and all
legal or other expenses whatsoever, as incurred (including fees and disbursements of counsel chosen
by the Underwriters) reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the Company will not be
19
liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the Company, the
directors, officers, employees and agents of the Company, and each person who controls the Company
within the meaning of either the 1933 Act or the 1934 Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements described in Section C of Schedule I
which appear in the Basic Prospectus, the Pricing Prospectus, any Permitted Free Writing Prospectus
or the Final Supplemented Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements are correct.
(c) 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 the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that such counsel shall
be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded 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, (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of
20
such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying
party; provided, however, that in no event shall the indemnifying party be liable for the expenses
of more than one separate counsel (plus any local counsel) representing the indemnified parties who
are parties to such action. No indemnifying party shall, without the prior written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action, claim, or proceeding) unless such settlement, compromise
or judgment (i) includes an unconditional release of the indemnified party from all liability
arising out of such action, claim or proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company
and the Underwriters agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively “Losses”) to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative benefits received by
the Company and by the Underwriters from the offering of the Securities; provided, however, that in
no case shall any Underwriter (except as may be provided in any agreement among the Underwriters
relating to the offering of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. Benefits received by the Company shall be deemed to
be equal to the total net proceeds from the offering (before deducting expenses), and benefits
received by the Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Final Supplemented Prospectus.
Relative fault shall be determined by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the Company or the Underwriters and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such alleged untrue statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of either the 1933
Act or the 1934 Act and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls the Company within
the meaning of either the 1933
Act or the 1934 Act, and each director, officer,
21
employee or agent of the Company shall have
the same rights to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Payment of Expenses.
The Company will pay all expenses incident to the performance of its obligations under this
Agreement, including:
(a) The preparation and filing of the Registration Statement and all amendments thereto and
any Permitted Free Writing Prospectus, the Pricing Prospectus, the Final Supplemented Prospectus
and any amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing or other reproduction, issuance and delivery of the Securities,
including any fees and expenses relating to the use of book-entry Securities;
(d) The fees and disbursements of the Company’s accountants and counsel, of the Trustee and
its counsel, and of any calculation agent;
(e) The qualification of the Securities under state securities laws in accordance with the
provisions of Section 5(g) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and any Legal Investment Survey;
(f) The printing and delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement and any amendments thereto, and of any Permitted Free Writing
Prospectus, the Pricing Prospectus, the Final Supplemented Prospectus and any amendments or
supplements thereto;
(g) The preparation, printing or other reproduction and delivery to the Underwriters of copies
of the Indenture and all supplements and amendments thereto;
(h) Any fees charged by rating agencies for the rating of the Securities;
(i) The fees and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc. or listing on a securities exchange;
(j) Any advertising and other out-of-pocket expenses of the Underwriters incurred with the
approval of the Company;
(k) The cost of providing any CUSIP or other identification numbers for the Securities; and
(l) The fees and expenses of DTC (as defined in the Indenture) and any nominees thereof in
connection with the Securities.
22
10. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names in Schedule II hereto
bears to the aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all of the
Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this Section 10, the Closing
Date shall be postponed for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and the Final
Supplemented Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
11. Representations, Warranties and Agreements to Survive Delivery.
The covenant regarding the provision of an earnings statement set forth in Section 5(f)
hereof, the provisions concerning payment of expenses set forth in Section 9 hereof, the provisions
concerning governing law and forum set forth in Section 15 hereof and all representations,
warranties, agreements, indemnities and other statements of the Company or its officers set forth
in this Agreement or in certificates of officers of the Company submitted pursuant hereto or
thereto shall remain operative and in full force and effect, regardless of any investigation made
by or on behalf of an Underwriter or any controlling person of such Underwriter, or by or on behalf
of the Company, and shall survive delivery of and payment for the Securities. The provisions of
Section 8 shall survive the termination or cancellation of this Agreement.
12. Termination of this Agreement.
This Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to the Closing Date (i) if there shall have
been, since the date of this Agreement or since the respective dates as of which information is
given in the Registration Statement and the Final Supplemented Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, or (ii) if, since the date of this Agreement, there shall have
occurred any material adverse change in the financial markets in the United States or any
23
outbreak or escalation of hostilities or other national or international calamity or crisis
the effect of which is such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering and delivery of the Securities, or (iii) if, since the
date of this Agreement, trading in any securities of the Company shall have been suspended by the
SEC or a national securities exchange or the over-the-counter markets, or if trading generally on
either the American Stock Exchange, the New York Stock Exchange or the over-the-counter markets
shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by either of said Exchanges, the
over-the-counter markets or by order of the SEC or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York authorities or if a
banking moratorium shall have been declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the Securities are denominated or payable,
or if a material disruption in commercial banking or securities settlement or clearance service in
such country shall have occurred, or (iv) if the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as of the date of this Agreement
shall have been lowered since that date or if any such rating agency shall have publicly announced
(other than a reaffirmation of a previous announcement) since such date that it has under a
surveillance or review, with possible negative implications, its rating of any debt securities of
the Company, or (v) if there shall have come to the Representatives’ attention any facts that would
cause the Representatives to reasonably believe that the Final Supplemented Prospectus, at the time
it was required to be delivered to the Underwriters, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time of such delivery, not misleading.
13. Notices.
Unless otherwise provided herein, all notices required under the terms and provisions hereof
shall be in writing, either delivered by hand, by mail or by telex, telecopier or telegram, and any
such notice shall be effective when received at the address specified below.
If to the Company:
Xxxxxx Rubbermaid Inc.
00X Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx
Fax: (000) 000-0000
00X Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx
Fax: (000) 000-0000
24
If to Barclays Capital Inc.:
c/o Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Fixed Income Syndicate Desk
Fax: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Fixed Income Syndicate Desk
Fax: (000) 000-0000
If to Citigroup Global Markets Inc.:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
If to Xxxxxxx, Xxxxx & Co.:
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
or at such other address as such party may designate from time to time by notice duly given in
accordance with the terms of this Section 13.
14. Parties.
This Agreement shall inure to the benefit of and be binding upon each Underwriter and the
Company and their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling persons and officers and directors
referred to in Section 8 and their heirs and legal representatives, any legal or equitable right,
remedy, claim or obligation under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of and binding upon the parties hereto and their respective successors and
said controlling persons and officers and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Securities shall be
deemed to be a successor by reason merely of such purchase.
15. Applicable Law.
This Agreement will be governed by and construed in accordance with the laws of the State of
New York. Any suit, action or proceeding brought by the Company against an Underwriter in
connection with or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in The City of New York.
25
If the foregoing is in accordance with the Underwriters’ understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this instrument along with
all counterparts will become a binding agreement between the Underwriters and the Company in
accordance with its terms.
| Very truly yours, | ||||||
| XXXXXX RUBBERMAID INC. | ||||||
| By: Name: Title: |
/s/ Xxxx X. Xxxx
Vice President, Treasurer |
|||||
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Barclays Capital Inc.
By: Name: Title: |
/s/ Xxxxxxx Xxxxxxxxx
Managing Director |
|||
| Citigroup Global Markets Inc. | ||||
By: Name: Title: |
/s/ Xxxxx X. Xxxxxxxxx
Managing Director |
|||
| Xxxxxxx, Xxxxx & Co. | ||||
By: Name: |
/s/ Xxxxxxx, Xxxxx & Co.
|
|||
Title: |
||||
For themselves and the other several
Underwriters, if any, named in Schedule
II to the foregoing Agreement.
Underwriters, if any, named in Schedule
II to the foregoing Agreement.
SCHEDULE I
| A. | Underwriting Agreement dated March 25, 2008 | |
| Registration Statement No.: 333-149887 |
| Representatives: | Barclays Capital Inc. | |||
| Citigroup Global Markets Inc. | ||||
| Xxxxxxx, Xxxxx & Co. |
| B. | Title, Purchase Price and Description of Securities: |
Title: 5.50% Notes due 2013
Principal amount: $500,000,000
Indenture: Indenture dated as of November 1, 1995 (as amended),
between the Xxxxxx Rubbermaid Inc. (formerly Newell Co.) and The
Bank of New York Trust Company, N.A. (as successor to XX Xxxxxx
Xxxxx Bank, formerly The Chase Manhattan Bank (National
Association)), as Trustee.
Purchase price: 99.209% of principal amount, plus accrued interest,
if any, from March 28, 2008 to the date of delivery.
between the Xxxxxx Rubbermaid Inc. (formerly Newell Co.) and The
Bank of New York Trust Company, N.A. (as successor to XX Xxxxxx
Xxxxx Bank, formerly The Chase Manhattan Bank (National
Association)), as Trustee.
Purchase price: 99.209% of principal amount, plus accrued interest,
if any, from March 28, 2008 to the date of delivery.
Sinking fund provisions: None
Redemption Provisions: Make-Whole at Treasury +50bps
Other provisions: Offer to purchase on change of control triggering
event
event
Closing Date: March 28, 2008
Applicable Time: 2:45 p.m., Chicago time
Location: At the offices of Winston & Xxxxxx LLP in Chicago, Illinois
Title: 6.25% Notes due 2018
Principal amount: $250,000,000
Indenture: Indenture dated as of November 1, 1995 (as amended),
between the Xxxxxx Rubbermaid Inc. (formerly Newell Co.) and The
Bank of New York Trust Company, N.A. (as successor to XX Xxxxxx
Xxxxx Bank, formerly The Chase Manhattan Bank (National
Association)), as Trustee.
Purchase price: 99.051% of principal amount, plus accrued interest,
if any, from March 28, 2008 to the date of delivery.
between the Xxxxxx Rubbermaid Inc. (formerly Newell Co.) and The
Bank of New York Trust Company, N.A. (as successor to XX Xxxxxx
Xxxxx Bank, formerly The Chase Manhattan Bank (National
Association)), as Trustee.
Purchase price: 99.051% of principal amount, plus accrued interest,
if any, from March 28, 2008 to the date of delivery.
Sinking fund provisions: None
Redemption Provisions: Make-Whole at Treasury +50bps
Other provisions: Offer to purchase on change of control triggering
event
event
Closing Date: March 28, 2008
Applicable Time: 2:45 p.m., Chicago time
Location: At the offices of Winston & Xxxxxx LLP in Chicago, Illinois
| C. | Information provided by or on behalf of the several Underwriters for purposes of Sections 1(a)(iii) and 8(b): | |
| The second sentence of the third paragraph and the first two sentences of the fifth paragraph under the caption “Underwriting” in the prospectus supplement. |
SCHEDULE II
| Principal Amount | Principal Xxxxxx | |||||||
| of 2013 Securities to be | of 2018 Securities to be | |||||||
| Underwriters | Purchased | Purchased | ||||||
Barclays Capital Inc. |
$ | 121,250,000 | $ | 60,625,000 | ||||
Citigroup Global Markets Inc. |
$ | 121,250,000 | $ | 60,625,000 | ||||
Xxxxxxx, Xxxxx & Co. |
$ | 121,250,000 | $ | 60,625,000 | ||||
Banc of America Securities LLC |
$ | 31,250,000 | $ | 15,625,000 | ||||
BNP Paribas Securities Corp. |
$ | 31,250,000 | $ | 15,625,000 | ||||
X.X. Xxxxxx Securities Inc. |
$ | 31,250,000 | $ | 15,625,000 | ||||
Mitsubishi UFJ Securities
International plc |
$ | 31,250,000 | $ | 15,625,000 | ||||
ING Financial Markets LLC |
$ | 11,250,000 | $ | 5,625,000 | ||||
ANNEX A
Pricing term sheet in the form attached hereto as Annex B.
ANNEX B
Filed Pursuant to Rule 433
Registration No. 333-149887
March 25, 2008
Registration No. 333-149887
March 25, 2008
PRICING TERM SHEET
Xxxxxx Rubbermaid Inc.
5.50% Notes due April 15, 2013
Issuer: |
Xxxxxx Rubbermaid Inc. | |
Note Type: |
Senior Unsecured Notes | |
Offering Format: |
SEC Registered | |
Size: |
$500,000,000 | |
Denomination: |
$1,000 x $1,000 | |
Maturity Date: |
April 15, 2013 | |
Coupon: |
5.50% | |
Interest Payment Dates: |
April 15 and October 15, commencing October 15, 2008 | |
Day Count Convention |
30/360 | |
Price to Public: |
99.809% | |
Benchmark Treasury: |
UST 2.75% due February 28, 2013 | |
Benchmark Treasury Yield: |
2.593% | |
Spread to Benchmark Treasury: |
T + 295 bps | |
Yield: |
5.543% | |
Make-Whole Call: |
T + 50 bps | |
Expected Settlement Date: |
March 28, 2008 | |
CUSIP: |
651229 AF3 | |
Anticipated Ratings: |
Baa2 by Xxxxx’x Investors Service, Inc. | |
| BBB+ by Standard & Poor’s Ratings Services | ||
| BBB by Fitch Inc. | ||
Joint Book-Running Managers: |
Barclays Capital Inc., Citigroup Global Markets Inc., | |
| Xxxxxxx, Xxxxx & Co. | ||
Sr. Co-Managers: |
Banc of America Securities LLC, BNP Paribas | |
| Securities Corp., X.X. Xxxxxx Securities Inc., | ||
| Mitsubishi UFJ Securities International plc | ||
Co-Managers: |
ING Financial Markets LLC |
Mitsubishi UFJ Securities International plc is not a U.S. registered broker-dealer and, therefore,
to the extent that it
intends to effect any sales of the notes in the United States, it will do so
through one or more U.S. registered broker-dealers as permitted by FINRA regulations.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Barclays Capital Inc. toll free at
0-000-000-0000, Citigroup Global Markets Inc. toll free at 0-000-000-0000, or Xxxxxxx, Xxxxx & Co.
toll-free at 1-866-471-2526.
Filed Pursuant to Rule 433
Registration No. 333-149887
March 25, 2008
Registration No. 333-149887
March 25, 2008
PRICING TERM SHEET
Xxxxxx Rubbermaid Inc.
6.25% Notes due April 15, 2018
Issuer: |
Xxxxxx Rubbermaid Inc. | |
Note Type: |
Senior Unsecured Notes | |
Offering Format: |
SEC Registered | |
Size: |
$250,000,000 | |
Denomination: |
$1,000 x $1,000 | |
Maturity Date: |
April 15, 2018 | |
Coupon: |
6.25% | |
Interest Payment Dates: |
April 15 and October 15, commencing October 15, 2008 | |
Day Count Convention |
30/360 | |
Price to Public: |
99.701% | |
Benchmark Treasury: |
UST 3.50% due February 15, 2018 | |
Benchmark Treasury Yield: |
3.49% | |
Spread to Benchmark Treasury: |
T + 280 bps | |
Yield: |
6.29% | |
Make-Whole Call: |
T + 50 bps | |
Expected Settlement Date: |
March 28, 2008 | |
CUSIP: |
651229 AG1 | |
Anticipated Ratings: |
Baa2 by Xxxxx’x Investors Service, Inc. | |
| BBB+ by Standard & Poor’s Ratings Services | ||
| BBB by Fitch Inc. | ||
Joint Book-Running Managers: |
Barclays Capital Inc., Citigroup Global Markets Inc., | |
| Xxxxxxx, Xxxxx & Co. | ||
Sr. Co-Managers: |
Banc of America Securities LLC, BNP Paribas | |
| Securities Corp., X.X. Xxxxxx Securities Inc., | ||
| Mitsubishi UFJ Securities International plc | ||
Co-Managers: |
ING Financial Markets LLC |
Mitsubishi UFJ Securities International plc is not a U.S. registered broker-dealer and, therefore,
to the extent that it intends to effect any sales of the notes in the United States, it will do so
through one or more U.S. registered broker-
dealers as permitted by FINRA regulations.
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Barclays Capital Inc. toll free at
0-000-000-0000, Citigroup Global Markets Inc. toll free at 0-000-000-0000, or Xxxxxxx, Xxxxx & Co.
toll-free at 1-866-471-2526.
