EXHIBIT 1.1
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The Xxxxx Xxxxxx Companies Inc.
5.550% Notes Due 2017
6.000% Notes Due 0000
Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
April 26, 2007
To the Representatives named in
Schedule I hereto of the several
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
The Xxxxx Xxxxxx Companies Inc., a corporation organized under
the laws of Delaware (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, $300,000,000 principal amount
of its 5.550% Notes due 2017 (the "2017 Notes") and $300,000,000 principal
amount of its 6.000% Notes due 2037 (the "2037 Notes" and together with the 2017
Notes, the "Securities") identified in Schedule II hereto, to be issued under an
indenture dated as of November 5, 1999 (the "Indenture"), between the Company
and U.S. Bank Trust National Association, as successor in interest to State
Street Bank and Trust Company, N.A., as trustee (the "Trustee"). To the extent
there are no additional Underwriters listed on Schedule I other than you, the
term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. Any reference herein to the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference. Certain terms used herein
are defined in Section 20 hereof.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission an
automatic shelf registration statement, as defined in Rule 405 (the file
number of which is set forth in Schedule I hereto) on Form S-3,
including a related Base Prospectus, for registration under the Act of
the offering and sale of the Securities. Such Registration Statement,
including any amendments thereto filed prior to the Time of Sale, became
effective upon filing. The Company may have filed with the Commission,
as part of an amendment to the Registration Statement or pursuant to
Rule 424(b), one or more preliminary prospectus supplements relating to
the Securities, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement
relating to the Securities in accordance with Rule 424(b). As filed,
such final prospectus supplement shall contain all information required
by the Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the Time
of Sale, and to the extent not completed at the Time of Sale, shall
contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Time of Sale,
will be included or made therein. The Registration Statement, at the
Time of Sale, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did,
and when the Final Prospectus is first filed in accordance with Rule
424(b) and on the Closing Date (as defined herein), the Final Prospectus
(and any supplement thereto) will, comply in all material respects with
the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective
Date and at the Time of Sale, the Registration Statement did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date the Indenture did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) 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, in the light of the
circumstances under which they were made, not misleading; provided,
-------- however, that the Company makes no representations or
warranties as to ------- (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), 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 in Section 8 hereof.
(c) (i) The Disclosure Package and (ii) each electronic road
show, if any, when taken together as a whole with the Disclosure
Package, at the Time of Sale does not, and at the Closing Date will 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 Disclosure Package based upon and in conformity with written
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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 in Section 8
hereof.
(d) (i) At the time of filing the Registration Statement,
(ii) at the time of the most recent amendment thereto, if any, for the
purposes of complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report filed
pursuant to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) 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 (iv) at the Time of Sale (with such date being used as the
determination date for purposes of this clause (iv)), 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 Commission
relating to the Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(e) (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2)) of the
Securities and (ii) as of the Time of Sale (with such date being used as
the determination date for purposes of this clause (ii)), the Company
was not and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission pursuant
to Rule 405 that it is not necessary that the Company be considered an
Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term
sheet prepared and filed pursuant to Section 5(b) hereto does not
include any information that conflicts with the information contained in
the Registration Statement, including any document incorporated therein
by reference and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence does
not apply to statements in or omissions from any Issuer Free Writing
Prospectus 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 in Section 8 hereof.
(g) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Registration Statement, Disclosure Package and the Final
Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Registration Statement, Disclosure Package and the Final Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Final Prospectus,
there has not been any change in the capital stock (other than pursuant
to employee and non-employee director stock option plans and employment
agreements in each case existing on the date of this Agreement) or
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long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, in each case, otherwise
than as set forth or contemplated in the Registration Statement,
Disclosure Package and the Final Prospectus.
(h) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Registration Statement, Disclosure Package and the
Final Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries or such as do not
and would not, individually or in the aggregate, have a material adverse
effect on the business, prospects, operations, financial condition or
results of operations of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect"); and any real property and buildings
held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
subsidiaries or such as do not and would not, individually or in the
aggregate, have a Material Adverse Effect.
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Registration
Statement, Disclosure Package and in the Final Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, except where failure to be so qualified
would not have a Material Adverse Effect; and each subsidiary of the
Company has been duly incorporated or organized and is validly existing
as a corporation, limited liability company or other legal entity in
good standing under the laws of its jurisdiction of incorporation,
except where failure to be in such good standing would not have a
Material Adverse Effect.
(j) The Company has an authorized capitalization as set
forth in the Registration Statement, Disclosure Package and in the Final
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock,
membership interests or other equity interests of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying shares and as
disclosed in the Registration Statement, Disclosure Package and in the
Final Prospectus) are owned directly or indirectly by the Company
(except for minority interests in those subsidiaries of the Company set
forth on Schedule III attached hereto), free and clear of all liens,
encumbrances, equities or claims.
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(k) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for foreign and state
securities and Blue Sky laws, and except for breaches, violations or
defaults (other than any relating to the Certificate of Incorporation or
By-laws of the Company) that would not, individually or in the
aggregate, have a Material Adverse Effect or in the aggregate impair the
Company's ability to consummate the transactions herein contemplated;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement except the registration under the Act of
the Securities, any required filings under the Exchange Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(l) Neither the Company nor any of the subsidiaries listed
on Annex A hereto, which are the only significant subsidiaries of the
Company as defined by Rule 1-02 of regulation S-X (each, a "Principal
Subsidiary" and collectively, the "Principal Subsidiaries") is in
violation of its Certificate of Incorporation or By-laws and neither the
Company nor any of its subsidiaries is in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, which default would have
a Material Adverse Effect.
(m) The statements set forth in the Registration Statement,
Disclosure Package and Final Prospectus under the caption "Description
of the Securities," insofar as they purport to constitute a summary of
the terms of the Securities, and under the caption "Certain U.S. Federal
Income Tax Considerations" set forth insofar as they purport to
summarize the provisions of the laws and documents and transactions
referred to therein are accurate and correct in all material respects.
(n) Other than as set forth in the Registration Statement,
Disclosure Package and the Final Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
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(o) There are no contracts or documents of a character
required to be described in the Registration Statement, the Disclosure
Package or the Final Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed.
(p) Each of the Company and its subsidiaries owns or has
rights to adequate foreign and domestic patents, patent licenses,
trademarks, service marks, trade names, inventions, copyrights and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) (collectively, the "Intellectual Property") necessary to
carry on their respective businesses as of the date hereof, and neither
the Company nor any of its subsidiaries is aware that it would interfere
with, infringe upon or otherwise come into conflict with any
Intellectual Property rights of third parties as a result of the
operation of the business of the Company or any subsidiary as of the
date hereof that, individually or in the aggregate, if subject to an
unfavorable decision, ruling or finding would have a Material Adverse
Effect.
(q) Except as disclosed in the Registration Statement, the
Disclosure Package and in the Final Prospectus, there are no holders of
securities (debt or equity) of the Company or any of its subsidiaries,
or holders of rights (including, without limitation, preemptive rights),
warrants or options to obtain securities of the Company or any of its
subsidiaries, who have the right to request the Company or any of its
subsidiaries to include securities held by them under the Registration
Statement.
(r) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment company"
or an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(s) KPMG LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(t) The Company and its consolidated subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with
management's authorization; (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; (E)
material information relating to the Company and its consolidated
subsidiaries is promptly made known to the officers responsible for
establishing and maintaining the system of internal accounting controls;
(F) any significant deficiencies or weaknesses in the design or
operation of internal accounting controls which could adversely affect
the Company's ability to record, process, summarize and report financial
data, and any fraud whether or not material that involves management or
other employees who have a significant role in internal controls, are
adequately and promptly disclosed to the Company's independent auditors
and the audit committee of the Company's board of directors; and (G) the
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Company and its consolidated subsidiaries' internal controls over
financial reporting are effective and the Company and its consolidated
subsidiaries are not aware of any material weakness in their internal
controls over financial reporting.
(u) The Company and its consolidated subsidiaries employ
"disclosure controls and procedures" (as such term is defined in Rule
13a-15(e) under the Exchange Act) that are designed to ensure that
information required to be disclosed by the Company in the reports that
it files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the
Commission's rules and forms, and is accumulated and communicated to the
Company's management, including its principal executive officer and
principal financial officer, appropriate to allow timely decisions
regarding disclosure and such disclosure controls and procedures are
effective.
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(w) The Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding obligation enforceable against
the Company in accordance with its terms (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and other similar laws affecting creditors' rights generally from time
to time in effect, and subject, as to enforceability, to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of
whether such enforceability is considered in a proceeding in equity or
at law); and the Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture (subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium,
and other similar laws affecting creditors' rights generally from time
to time in effect, and subject, as to enforceability, to general
principles of equity, including, without limitation, concepts or
materiality, reasonableness, good faith and fair dealing, regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
(x) There is and has been no material failure on the part of
the Company and any of the Company's directors or officers, in their
capacities as such, to comply 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.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
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2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, 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.
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 at such time on such later date not more than three Business Days
after the foregoing 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 9 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 payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct. Certificates for the Securities shall be registered in such names and
in such denominations as the Representatives may request not less than two
Business Days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representative in New York, New York, not later
than 1:00 PM on the Business Day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Prospectus) to the Base Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. The Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (i) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) (ii) when, prior
to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iii)
of any request by the Commission or its staff for any amendment of the
Registration Statement or for any supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
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qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the occurrence of any such suspension or objection to the
use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of
such stop order or relief from such occurrence or objection, including,
if necessary, by filing an amendment to the Registration Statement or a
new registration statement and using its best efforts to have such
amendment or new registration statement declared effective as soon as
practicable.
(b) To prepare a final term sheet, containing solely a
description of final terms of the Securities and the offering thereof,
in the form approved by you and attached as Schedule V hereto and to
file such term sheet pursuant to Rule 433(d) within the time required by
such Rule.
(c) If, at any time prior to the filing of the Final
Prospectus pursuant to Rule 424(b), any event occurs as a result of
which the Disclosure Package would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they
were made or the circumstances then prevailing not misleading, the
Company will (i) notify promptly the Representatives so that any use of
the Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure Package to correct such
statement or omission; and (iii) supply any amendment or supplement to
you in such quantities as you may reasonably request.
(d) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made at such
time not misleading, or if it shall be necessary to amend the
Registration Statement, file a new registration statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, including in connection with use or
delivery of the Final Prospectus, the Company promptly will (i) notify
the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement or new registration statement
which will correct such statement or omission or effect such compliance,
(iii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final
Prospectus and (iv) supply any supplemented Final Prospectus to you in
such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158.
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(f) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies of
each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution
of the Securities; provided that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so
subject.
(h) The Company agrees that, unless it has or shall have
obtained the prior written consent of the Representatives, and each
Underwriter, severally and not jointly, agrees with the Company that,
unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any
offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a "free writing
prospectus" (as defined in Rule 405) required to be filed by the Company
with the Commission or retained by the Company under Rule 433, other
than a free writing prospectus containing the information contained in
the final term sheet prepared and filed pursuant to Section 5(b) hereto;
provided that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule IV hereto and any electronic road show, if used.
Any such free writing prospectus consented to by the Representatives or
the Company is hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company (x) agrees that it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer
Free Writing Prospectus and confirms (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record
keeping.
(i) The Company will not, without the prior written consent
of the Representatives, 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 Exchange Act, any debt securities issued or
guaranteed by the Company (other than the Securities) or publicly
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announce an intention to effect any such transaction, until the Business
Day set forth on Schedule I hereto.
(j) 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 Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay any fees of Xxxxx'x Investors
Service, Inc. and Standard & Poor's Ratings Group, relating to the
ratings of the Securities.
(l) The Underwriters agree to pay: (i) the fees and
disbursements of their counsel, (ii) the expenses of printing of the
documents related to the offering of the Securities, (iii) the fees and
disbursements of KPMG LLP, in connection with the preparation of its
letter required by Section 6(f) of this Agreement, (iv) the reasonable
fees and disbursements of outside counsel for the Company related to the
offering of the Securities, and (v) the reasonable fees and
disbursements of the Trustee relating to the offering of the Securities
that are payable on the Closing Date.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Time of Sale and the Closing Date, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have
been filed in the manner and within the time period required by Rule
424(b); the final term sheet contemplated by Section 5(b) hereto, and
any other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission within
the applicable time periods prescribed for such filings by Rule 433; and
no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives:
(i) an opinion of Weil, Gotshal & Xxxxxx LLP,
counsel to the Company, dated the Closing Date and addressed to
the Representatives, in form and substance set forth on Exhibit
A hereto; and
(ii) a letter of Weil, Gotshal & Xxxxxx LLP dated the
Closing Date in form and substance set forth on Exhibit B
hereto.
(c) The Representatives shall have received from Fried,
Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Disclosure
Package, the Final Prospectus (together with any supplement thereto) and
11
other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signer of such certificate has carefully examined the
Registration Statement, the Disclosure Package, the Final Prospectus and
any supplements or amendments thereto, as well as each electronic road
show, if any, used in connection with the offering of the Securities,
and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement or any notice objecting to its use
has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto), there has been
no material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and
its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(e) At or prior to the Closing Date, the Company shall have
executed and delivered to the Underwriters an officer's certificate
pursuant to Section 3.01 of the Indenture, in form and substance
reasonably satisfactory to the Underwriters, and the Indenture and such
officer's certificate shall be in full force and effect.
(f) The Company shall have requested and caused KPMG LLP to
have furnished to the Representatives, at the Time of Sale and at the
Closing Date, letters, (which may refer to letters previously delivered
to one or more of the Representatives), dated respectively as of the
Time of Sale and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of the
unaudited interim financial information of the Company for the six-month
period ended December 31, 2006, and as at December 31, 2006, in
accordance with Statement on Auditing Standards No. 100, and stating in
effect that:
12
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus and reported on
by them comply as to form with the applicable accounting
requirements of the Act and the Exchange Act and the related
rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company and
its subsidiaries; their limited review, in accordance with
standards established under Statement on Auditing Standards No.
100, of the unaudited interim financial information for the
six-month period ended December 31, 2006 and as of December 31,
2006 incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Final Prospectus; carrying
out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
audit committees of the Company and the subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to June 30, 2006, nothing came to their attention
which caused them to believe that:
(1) any unaudited financial statements
included or incorporated by reference in the
Registration Statement, the Preliminary Prospectus and
the Final Prospectus do not comply as to form with
applicable accounting requirements of the Act and with
the related rules and regulations adopted by the
Commission with respect to financial statements included
or incorporated by reference in quarterly reports on
Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included or incorporated by
reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus;
(2) as of a specified date not more than
five days prior to the date of such letter, there have
been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible
securities, in each case which were outstanding on the
date of the balance sheet included or incorporated by
reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus) or any increase in
the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in
any items specified by the Representatives, in each case
compared with amounts shown in the December 31, 2006
13
balance sheet included or incorporated by reference in
the Registration Statement, the Preliminary Prospectus
and the Final Prospectus except in each case for
changes, increases or decreases which the Registration
Statement, the Preliminary Prospectus and the Final
Prospectus discloses have occurred or may occur or which
are described in such letter;
(3) for the period from the date of the
latest financial statements included or incorporated by
reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus to the specified
date referred to above there were any decreases in
consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or
other items specified by the Representatives, or any
increases in any items specified by the Representatives,
in each case as compared with the comparable period of
the preceding year and with any other period of
corresponding length specified by the Representatives,
except in each case for increases or decreases which the
Registration Statement, the Preliminary Prospectus and
the Final Prospectus discloses have occurred or may
occur or which are described in such letter; and
(4) the information included or incorporated
by reference in the Registration Statement, the
Preliminary Prospectus and Final Prospectus in response
to Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information), Item 402
(Executive Compensation) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K;
(iii) In addition to the audit referred to in their
report incorporated by reference in the Registration Statement,
the Preliminary Prospectus and the Final Prospectus and the
limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraph (ii) above, they have
carried out certain specified procedures, not constituting an
audit in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived
from the general accounting records of the Company and its
subsidiaries, which appear in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus (excluding
documents incorporated by reference) or in exhibits and
schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the
Preliminary Prospectus and the Final Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them
to be in agreement.
References to the Final Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
14
(g) Subsequent to the Time of Sale or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive
of any amendment or supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (f) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive
of any amendment thereof), the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto).
(h) Subsequent to the Time of Sale, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(i) 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.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement shall
not be reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Weil, Gotshal & Xxxxxx LLP, counsel for the
Company, at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing 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, 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 through the Representatives, on demand for
all 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.
15
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 Act or the Exchange 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 Act, the Exchange 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 as
originally filed or in any amendment thereof, or in the Base Prospectus, any
Preliminary Prospectus or any other preliminary prospectus supplement relating
to the Securities, the Final Prospectus, any Issuer Free Writing Prospectus or
the information contained in the final term sheet required to be prepared and
filed pursuant to Section 5(b) hereto, 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 legal or other expenses 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 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 and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange 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.
(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
16
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 such action
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise 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 parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a), (b) or (c) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the
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 on the one hand
and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among 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 severally shall contribute in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses 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) received by it, 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 Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to
17
state a material fact relates to information provided by the Company on
the one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such 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 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 Act or the
Exchange 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 Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director 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. 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
principal amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate principal 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 principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal 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 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 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final 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.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such delivery and payment (i) trading in the Company's Common
Stock shall have been suspended by the Commission or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
18
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
any of the Disclosure Package, the Final Prospectus (exclusive of any amendment
or supplement thereto), or this Agreement.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Citigroup Global Markets Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel; X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (fax no.: (000) 000-0000); Attention: High Grade
Syndicate Desk; or, if sent to the Company, will be mailed, delivered or
telefaxed to it at 0 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000-0000 (fax
no.: (000) 000-0000); Attention of Treasurer, with a copy to it at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax no.: (000) 000-0000); Attention of the
General Counsel.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. 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). Any review by the
Underwriters of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Company. 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.
19
15. Integration. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company and
the Underwriters, or any of them, with respect to the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
17. Waiver of Jury Trial. The Company hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
19. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
20. Definitions. The terms that follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Base Prospectus" shall mean the base prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the Time
of Sale.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Base Prospectus, (ii)
the Preliminary Prospectus used most recently prior to the Time of Sale,
(iii) the Issuer Free Writing Prospectuses, if any, identified in
Schedule IV hereto, (iv) the final term sheet prepared and filed
pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package.
"Effective Date" shall mean each date and time that the
Registration Statement and any post-effective amendment or amendments
thereto became or becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
20
"Final Prospectus" shall mean the prospectus supplement relating
to the Securities that was first filed pursuant to Rule 424(b) after the
Time of Sale together with the Base Prospectus.
"Free Writing Prospectus" shall mean a free writing prospectus,
as defined in Rule 405.
"Issuer Free Writing Prospectus" shall mean an issuer free
writing prospectus, as defined in Rule 433.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus referred to in paragraph 1(a) above
which is used prior to the filing of the Final Prospectus, together with
the Base Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Securities that
is filed with the Commission pursuant to Rule 424(b) and deemed part of
such registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended.
"Rule 158", "Rule 163", "Rule 164", "Rule 172", "Rule 405",
"Rule 415", "Rule 424", "Rule 430B" and "Rule 433" refer to such rules
under the Act.
"Time of Sale" shall mean 4:12 p.m April 26, 2007, that being
the time at or immediately prior to the time when sales of the
Securities were first made.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission
promulgated thereunder.
"Well-Known Seasoned Issuer" shall mean a well-known seasoned
issuer, as defined in Rule 405.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE XXXXX XXXXXX COMPANIES
INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President/Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
By: Citigroup Global Markets Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
By: X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
22
SCHEDULE I(a)
SECURITIES
5.550% SENIOR NOTES DUE 2017
Underwriting Agreement dated April 26, 2007
Registration Statement No.: 333-142342
Representatives: Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
Title of Securities: 5.550% Senior Notes due 2017
Principal Amount: $300,000,000
Interest Rate: 5.550%
Purchase Price: 99.195%
Offering Price: 99.845%
Interest Payment Dates: May 15 and November 15, commencing November 15, 2007
Subordination Provisions: None
Optional Redemption: Make Whole at Treasury + 15 bp
Sinking Fund Provisions: None
Closing Date and Time: May 1, 2007, 10 a.m., ET
Method of Payment of Securities: wire transfer of funds
Other provisions: Closing Date, Time and Location: May 1, 2007 at
10:00 a.m. at
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Type of Offering: Non-delayed
Date referred to in Section 5(i) after which the Company may
offer or sell debt securities issued or guaranteed by the
Company without the consent of the Representative(s): until
the Business Day following the Closing Date
SCHEDULE I(b)
SECURITIES
6.000% SENIOR NOTES DUE 2037
Underwriting Agreement dated April 26, 2007
Registration Statement No.: 333-142342
Representatives: Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
Title of Securities: 6.000% Senior Notes due 2037
Principal Amount: $300,000,000
Interest Rate: 6.000%
Purchase Price: 97.847%
Offering Price: 98.722%
Interest Payment Dates: May 15 and November 15, commencing November 15, 2007
Subordination Provisions: None
Optional Redemption: Make Whole at Treasury + 20 bp
Sinking Fund Provisions: None
Closing Date and Time: May 1, 2007, 10 a.m., ET
Method of Payment of Securities: wire transfer of funds
Other provisions: Closing Date, Time and Location: May 1, 2007 at
10:00 a.m. at
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Type of Offering: Non-delayed
Date referred to in Section 5(i) after which the Company may
offer or sell debt securities issued or guaranteed by the
Company without the consent of the Representative(s): until
the Business Day following the Closing Date
SCHEDULE II
Principal Amount Principal Amount
of 2017 Notes to of 2037 Notes to
Underwriters be Purchased be Purchased
------------ ---------------- ----------------
Citigroup Global Markets Inc. ........... $ 99,000,000 $ 99,000,000
X.X. Xxxxxx Securities Inc. ............. 99,000,000 99,000,000
BNP Paribas Securities Corp. ............ 30,000,000 30,000,000
Xxxxxxx, Xxxxx & Co. .................... 18,000,000 18,000,000
HSBC Securities (USA) Inc. .............. 18,000,000 18,000,000
Lazard Capital Markets LLC .............. 18,000,000 18,000,000
Greenwich Capital Markets, Inc. ......... 18,000,000 18,000,000
--------------- ----------------
Total............................ $ 300,000,000 $ 300,000,000
SCHEDULE III
CERTAIN SUBSIDIARIES WITH MINORITY INTERESTS
NOT HELD DIRECTLY OR INDIRECTLY BY THE COMPANY
ELC
---
SUBSIDIARY OWNERSHIP
---------- ---------
ELCA Cosmetics Limited and its wholly-owned 51%
subsidiaries: Xxxxx Xxxxxx Hellas S.A., Xxxxx
Xxxxxx Bulgaria EOOD and Xxxxx Xxxxxx Romania
s.r.l.
Aveda Services K.K. 30%
Socosmet-Sociedade de Cosmetica, LDA 83%
Xxxxx.xxx LLC 92%
Lipstick Queen, LLC 70%
SCHEDULE IV
Schedule of Free Writing Prospectuses included in the Disclosure Package
Information contained on Schedule V
Free Writing Prospectus filed pursuant to Rule 433, Registration No.
333-142342, April 26, 2007.
SCHEDULE V
FINAL TERM SHEETS
5.550% NOTES DUE 2017
ISSUER: The Xxxxx Xxxxxx Companies Inc.
SECURITY: 5.550% Notes due 2017
SIZE: $300,000,000
MATURITY DATE: May 15, 2017
COUPON: 5.550%
INTEREST PAYMENT DATES: May 15 and November 15, commencing
November 15, 2007
PRICE TO PUBLIC: 99.845%
BENCHMARK TREASURY: 4.625% due February 15, 2017
BENCHMARK TREASURY YIELD: 4.690%
SPREAD TO BENCHMARK TREASURY: + 88 bp
YIELD: 5.570%
MAKE-WHOLE CALL: T + 15 bp
EXPECTED SETTLEMENT DATE: May 1, 2007
CUSIP: 00000XXX0
ANTICIPATED RATINGS: A2 by Xxxxx'x Investors Service, Inc.
A by Standard & Poor's Ratings Services
JOINT BOOK-RUNNING MANAGERS: Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
6.000% NOTES DUE 2037
ISSUER: The Xxxxx Xxxxxx Companies Inc.
SECURITY: 6.000% Notes due 2037
SIZE: $300,000,000
MATURITY DATE: May 15, 2037
COUPON: 6.000%
INTEREST PAYMENT DATES: May 15 and November 15, commencing
November 15, 2007
PRICE TO PUBLIC: 98.722%
BENCHMARK TREASURY: 4.500% due February 15, 2036
BENCHMARK TREASURY YIELD: 4.893%
SPREAD TO BENCHMARK TREASURY: + 120 bp
YIELD: 6.093%
MAKE-WHOLE CALL: T + 20 bp
EXPECTED SETTLEMENT DATE: May 1, 2007
CUSIP: 00000XXX0
ANTICIPATED RATINGS: A2 by Xxxxx'x Investors Service, Inc.
A by Standard & Poor's Ratings Services
JOINT BOOK-RUNNING MANAGERS: Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
PRO FORMA AS ADJUSTED (1)
-----------------------------------
SIX MONTHS ENDED YEAR ENDED
DECEMBER 31, 2006 JUNE 30, 2006
----------------- -------------
Ratio of Earnings to Fixed Charges...... 7.04 5.51
(1) Adjusted for $300 million of notes outstanding at a cost of
5.550% per annum and $300 million of notes outstanding at a cost
of 6.000% per annum for the applicable period.
ANNEX A
SIGNIFICANT SUBSIDIARIES
Aramis Inc.
Clinique Laboratories, LLC
ELCA Cosmeticos LDA
Xxxxx Xxxxxx Cosmetics Limited
Xxxxx Xxxxxx Europe, Inc.
Xxxxx Xxxxxx Inc.
Xxxxx Xxxxxx International, Inc.
Xxxxx Xxxxxx Nova Scotia, Co.
