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EXHIBIT 1.1
Rubbermaid Incorporated
Debt Securities
Underwriting Agreement
[ ], 1996
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Rubbermaid Incorporated, a Company organized under the laws of
Ohio (the "Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture") between
the Company and the Trustee identified in such Schedule (the "Trustee"). 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 prepared and filed with the Securities and
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The
registration statement as amended to the date of this Agreement is hereinafter
referred to as the "Registration Statement" and the related prospectus covering
the Shelf Securities in the
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form first used to confirm sales of the Securities is hereinafter referred to
as the "Basic Prospectus". The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Securities in the form first
used to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 or the
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 Securities Act
which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act") on or before the date of this Agreement or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be;
and any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under
the Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the
basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the purchase
price set forth in Schedule I hereto.
2. The Company understands that the several Underwriters intend
(i) to make a public offering of their respective portions of the Securities
and (ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made in immediately
available funds to an account specified by the Company at the time and place
set forth in Schedule I hereto (or at such other time and place on the same or
such other date, not later than the fifth Business Day thereafter, as
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the Representatives and the Company may agree in writing). The time and date
of such payment and delivery with respect to the Securities are referred to
herein as the Closing Date. As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City.
Payment for the Securities will be made against delivery to, or to
the Representatives for the respective accounts of, such Underwriters of the
Securities registered in such names and in such denominations as the
Representatives shall request not later than two full Business Days prior to
the Closing Date with any transfer taxes payable in connection with transfer to
the Underwriters duly paid by the Company. The Securities will be represented
by one or more global certificates, which will be made available for inspection
by the Representatives by 1:00 P.M. on the Business Day prior to the Closing
Date at such place in New York City as the Representatives and the Company
shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by the
Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of the
Company, threatened by the Commission; and the Registration Statement and
Prospectus comply and, as amended or supplemented, if applicable, will
comply, in all material respects with the Securities Act and the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Trust Indenture Act"); each part
of the Registration Statement filed with the Commission pursuant to the
Securities Act, when such part became effective, did not contain, and each
such part, as amended or supplemented, if applicable, will not contain, any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and the Prospectus did not, as of the date of the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state any 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 the
Prospectus, as
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amended or supplemented at the Closing Date, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing representations and warranties shall not apply to (i) that part
of the Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
the Trustee, and (ii) statements or omissions in the Registration Statement
or the Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents, when they were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they are made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents are filed
with the Commission, will conform in all material respects to the
requirements of the Exchange Act and will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their consolidated cash
flows for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein; [and the pro forma financial information, and the related notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus has been
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prepared in accordance with the applicable requirements of the Securities
Act and the Exchange Act, as applicable;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material adverse change, or any development known by the Company (after
diligent inquiry) involving a prospective material adverse change, in or
affecting the business, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth, incorporated by reference or contemplated in
the Prospectus; and except as set forth or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the 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, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) each of the Company's subsidiaries that constitutes a
"Significant Subsidiary" within the meaning of Rule 1-02 of Regulation S-X
of the Commission (the "Material Subsidiaries") has been duly incorporated
and is validly existing as a corporation under the laws of its jurisdiction
of incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the 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 jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the
business, financial position, stockholders' equity or results of operations
of the Company and its
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subsidiaries taken as a whole (a "Material Adverse Effect"); and all the
outstanding shares of capital stock of each Material Subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security interests
and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized and upon effectiveness of
the Registration Statement will have been duly qualified under the Trust
Indenture Act and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and binding instrument of
the Company; and the Securities and the Indenture will conform to the
descriptions thereof in the Prospectus;
(i) neither the Company nor any of its Material Subsidiaries is,
or with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Material
Subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and its
subsidiaries taken as a whole or to the holders of the Securities; the
issue and sale of the Securities and the performance by the Company of all
of its obligations under the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its Material Subsidiaries is a
party or by which the Company or any of its Material Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
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Material Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or, except as would reasonably not be expected to
have a Material Adverse Effect, any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their respective
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, registrations
or qualifications as have been obtained under the Securities Act, the Trust
Indenture Act and as may be required under state securities or Blue Sky
Laws in connection with the purchase and distribution of the Securities by
the Underwriters;
(j) other than as set forth, incorporated by reference or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or any of its Material Subsidiaries is or may be a party
or to which any property of the Company or any of its Material Subsidiaries
is or may be the subject which, if determined adversely to the Company,
could individually or in the aggregate reasonably be expected to have a
Material Adverse Effect and, to the best of the Company's knowledge, no
such proceedings are threatened by governmental authorities or threatened
by others; and there are no contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
which are not filed or described as required;
(k) each of the Company and its subsidiaries is in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health or the environment
or imposing liability or standards of conduct concerning any Hazardous
Material (collectively, "Environmental Laws"), except where such
non-compliance with Environmental Laws could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Company and its subsidiaries,
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taken as a whole. The term "Hazardous Material" means (i) any "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act, as
amended, (iii) any petroleum or petroleum product, (iv) any polychlorinated
biphenyl, and (v) any pollutant or contaminant or hazardous, dangerous, or
toxic chemical, material, waste or substance regulated under or within the
meaning of any other Environmental Law;
(l) each of the Company and its subsidiaries owns or possesses
the right to use the patents, patent licenses, trademarks, service marks,
trade names, copyrights and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) (collectively, the "Intellectual Property")
reasonably necessary to carry on the business conducted by each as
conducted on the date hereof, except to the extent that the failure to own
or possess the right (through license or otherwise) to use such
Intellectual Property could not, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and, except as set forth or incorporated by
reference in the Registration Statement and the Prospectus, neither the
Company nor any subsidiary has received any notice of infringement of
asserted rights of others with respect to any Intellectual Property, except
for notices the content of which if accurate could not, singly or in the
aggregate, reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(m) KPMG Peat Marwick LLP, who have certified certain
financial statements of the Company and its subsidiaries, are independent
public accountants as required by the Securities Act;
(n) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida); and
(o) the Company is not 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.
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5. The Company covenants and agrees with the several
Underwriters as follows:
(a) to file the Prospectus in a form approved by the
Representatives pursuant to Rule 424 under the Securities Act not later
than the Commission's close of business on the second Business Day
following the date of determination of the offering price of the
Securities;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in
each case including exhibits and documents incorporated by reference
therein and, during the period mentioned in paragraph (f) below, to each of
the Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference therein as
the Representatives may reasonably request;
(c) during the period mentioned in paragraph (f) below, before
filing any amendment or supplement to the Registration Statement or
Prospectus, to furnish to the Representatives a copy of any proposed
amendment or supplement to the Registration Statement or the Prospectus for
review;
(d) to file promptly, subject to the provisions of paragraph (c)
above, all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the period mentioned
in paragraph (f) below;
(e) during the period mentioned in paragraph (f) below, to advise
the Representatives promptly, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for any additional information, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the receipt by
the Company of any notification with respect to any suspension of the
qualification of the Securities for offer and sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose; and to
use its best
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efforts to prevent the issuance of any such stop order or notification and,
if issued, to obtain as soon as possible the withdrawal thereof;
(f) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to
be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to comply with law, forthwith to prepare and furnish, at the expense of the
Company, to the Underwriters and to the dealers (whose names and addresses
the Representatives will furnish to the Company) to which Securities may
have been sold by the Representatives on behalf of the Underwriters and to
any other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law;
(g) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and to continue such qualification
in effect so long as reasonably required for distribution of the Securities
and to pay all fees and expenses (including the reasonable fees and
disbursements of counsel to the Underwriters) reasonably incurred in
connection with such qualification and in connection with the determination
of the eligibility of the Securities for investment under the laws of such
jurisdictions as the Representatives may designate; PROVIDED that the
Company shall not be required to file a general consent to service of
process in any jurisdiction or to qualify as a foreign corporation in any
jurisdiction;
(h) to make generally available to its security holders and to
the Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the effective date of the Registration
Statement, which shall satisfy
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the provisions of Section 11(a) of the Securities Act and Rule 158 of the
Commission promulgated thereunder;
(i) so long as the Securities are outstanding, to furnish to the
Representatives upon request copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of any
reports and financial statements furnished to or filed with the Commission
or any national securities exchange;
(j) during the period beginning on the date hereof and continuing
to and including the Business Day following the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the Securities
without prior written consent of the Representatives; and
(k) to pay all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the
Underwriters may designate (including the reasonable fees of counsel for
the Underwriters and their disbursements), (iv) in connection with the
listing of the Securities on any stock exchange, (v) related to any filing
with National Association of Securities Dealers, Inc., (vi) in connection
with the printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Preliminary and Supplemental
Blue Sky Memoranda and any Legal Investment Survey and the furnishing to
underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided and (vii)
payable to rating agencies in connection with the rating of the Securities.
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6. The several obligations of the Underwriters hereunder shall
be subject to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made on and
as of the Closing Date and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for such
filing by the rules and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
satisfaction of the Representatives;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any material adverse change or
any development involving a prospective material adverse change, in or
affecting the business, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth, incorporated by reference or contemplated in
the Prospectus, the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to the Representatives to the effect set forth in subsections
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(a) through (c) of this Section and to the further effect that there has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement;
(f)(1) Xxxxx, Day, Xxxxxx & Xxxxx, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the
Closing Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Securities have been duly authorized, executed and
delivered by the Company and, when duly authenticated in
accordance with the terms of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company; and the Indenture has been duly
qualified under the Trust Indenture Act;
(iv) the statements in the Prospectus under
"Description of Notes" and "Description of Debt Securities",
insofar as such statements constitute a summary of the legal
matters or documents referred to therein, fairly present the
information called for with respect to such legal matters or
documents; and
(v)(A) no facts have come to such counsel's attention to
cause them to believe that (except for the financial statements
included in the Registration Statement and Prospectus as to which
such counsel need express no belief and except for that part of
the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) of the Trustee and except
with respect to information contained in the Registration
Statement or the Prospectus relating
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to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein)
the Registration Statement (including the documents incorporated
by reference therein) filed with the Commission pursuant to the
Securities Act relating to the Securities, at the time it became
effective, 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 not misleading, (B) such
counsel is of the opinion that the Registration Statement and the
Prospectus and any amendments and supplements thereto (except for
the financial statements included therein as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and (C) such
counsel does not believe that (except for the financial statements
included therein as to which such counsel need express no belief
and except for that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee and except with respect to information
contained in the Registration Statement or the Prospectus relating
to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein)
the Registration Statement, as amended on the date of this
Agreement, contained any 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 not misleading, or that
the Prospectus, as amended or supplemented, if applicable,
contains any untrue statement of a material fact 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.
(2) Xxxxx X. Xxxxxx, General Counsel for the Company, shall
have furnished to the Representatives his written opinion, dated the
Closing Date, in form and substance satisfactory to the Representatives, to
the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, with power and authority
(corporate
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and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) the Company 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, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(iii) each of the Company's Material Subsidiaries has been
duly incorporated and is validly existing as a corporation under
the laws of its jurisdiction of incorporation with power and
authority (corporate and other) to own its properties and conduct
its business as described in the 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, other than where the failure
to be so qualified and in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole; and all of the outstanding shares of capital stock of each
Material Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except in the case
of foreign subsidiaries, for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iv) to the best of such counsel's knowledge after diligent
inquiry, other than as set forth, incorporated by reference or
contemplated in the Prospectus, there are no legal or governmental
proceedings pending or threatened to which the Company or any of
its Material Subsidiaries is or may be a party or to which any
property of the Company or its Material Subsidiaries is or may be
the subject which, if determined adversely to the Company or such
Material Subsidiaries, could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect; to the
best of such counsel's knowledge, no such proceedings are
threatened by governmental
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authorities or others; and such counsel does not know of any
contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus
which are not filed or described as required;
(v) neither the Company nor any of its Material
Subsidiaries is, or with the giving of notice or lapse of time or
both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its Material Subsidiaries is a party or by which it or any of them
or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a
whole or to the holders of the Securities; the issue and sale of
the Securities and the performance by the Company of its
obligations under the Securities, the Indenture and this Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument known to such counsel to
which the Company or any of its Material Subsidiaries is a party
or by which the Company or any of its Material Subsidiaries is
bound or to which any of the property or assets of the Company or
any of its Material Subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
Certificate of Incorporation, or the By-Laws of the Company or,
except as would reasonably not be expected to have a Material
Adverse Effect, any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, its Material Subsidiaries or any of
their respective properties;
(vi) no consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or
body is required for the issue and sale of the Securities
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or the consummation of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act and
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities
by the Underwriter;
(vii) the statements in the Prospectus incorporated by
reference from Item 3 of Part I of the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1994, in the
Prospectus incorporated by reference from Item 1 of Part II of the
Company's Quarterly Reports on Form 10-Q, if any, filed since such
Annual Report, in the Prospectus incorporated by reference from
Item 5 of the Company's Current Reports on Form 8-K, if any, filed
since such Annual Report, and in the Registration Statement in
Item 15, insofar as such statements constitute a summary of the
legal proceedings referred to therein, fairly present the
information called for with respect to such legal proceedings; and
(viii) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements included therein
as to which such counsel need express no opinion) complied as to
form when filed with the Commission in all material respects with
the Exchange Act.
In rendering the opinions set forth in this Section 6(f),
such counsel may rely (A) as to matters involving the application of laws
other than the laws of the United States and the States of New York and
Ohio, to the extent such counsel deems proper and to the extent specified
in such opinion, if at all, upon an opinion or opinions (reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable laws;
and (B) as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the
Company. The opinion of such counsel for the Company shall state that the
opinion of any such other counsel
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is in form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to
the matters to be covered in subparagraph (1)(v) above, counsel may state
their opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto and their discussions from time to time
with officers, directors and employees of the Company, KPMG Peat Marwick
LLP, and you, concerning the information contained in the Registration
Statement and Prospectus and the proposed responses to various items in
Form S-3 but that such counsel (except as specified in subparagraph (1)(iv)
and (2)(vii)) has not independently verified, is not passing upon, and does
not assume any responsibility for the accuracy, completeness or fairness of
the information contained in the Registration Statement and Prospectus.
With respect to the matters to be covered in subparagraph (1)(ii), counsel
may state that their opinion is subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other laws now or
hereafter in effect relating to or limiting creditors' rights, (ii) general
principles of equity, whether such enforceability is considered in a
proceeding in equity or at law, and to the discretion of the court before
which any proceeding therefor may be brought, and (iii) public policy
considerations that may limit the rights of the Underwriters to obtain
certain remedies and to indemnification.
(g) on the Closing Date, KPMG Peat Marwick LLP shall have
furnished to the Representatives letters, dated such date, in form and
substance satisfactory to the Representatives, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus;
(h) the Representatives shall have received on and as of the
Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the
Underwriters, with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters; and
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(i) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and documents as
the Representatives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any
claim asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use therein; PROVIDED that the foregoing indemnity with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and, if required by law, a copy of the
Prospectus (as so amended or supplemented) shall not have been furnished to
such person at or prior to the written confirmation of the sale of such
Securities to such person.
Each Underwriter agrees, severally and not jointly to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter
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through the Representatives expressly for use in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person shall be
entitled to participate in the defense therein and, except as set forth below,
to the extent it wishes, to assume the defense thereof and retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others the Indemnifying Person may designate in such proceeding
and shall pay the reasonable fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be, in the reasonable judgment of the
Indemnified Person, inadvisable due to actual or potential differing interests
between them. It is understood that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Underwriters and such control persons of Underwriters shall be designated
in writing by the first of the named Representatives on Schedule I hereto and
any such separate firm for the Company, its directors, its officers who sign
the Registration Statement and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall,
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without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
and the total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by PRO
RATA allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not
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take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of the Securities set forth opposite their
names in Schedule II hereto, and not joint.
The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
8. The parties hereto agree that names of the Underwriters,
the stabilization legend on the inside front cover page of and the concessions
referenced in the third paragraph under the caption "Underwriting" in the
prospectus supplement specifically relating to the Securities constitute the
only information contained in the Registration Statement and the Prospectus
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use
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therein, as such information is referred to in Sections 6(f)(1)(viii) and 7
hereof.
9. Notwithstanding anything herein contained, this Agreement may
be terminated in the absolute discretion of the Representatives, by notice
given to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of or guaranteed by
the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and
which, in the judgment of the Representatives, makes it impracticable to market
the Securities on the terms and in the manner contemplated in the Prospectus.
10. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may specify,
to purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; PROVIDED that in no
event shall the principal amount of Securities that any Underwriter has agreed
to purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-ninth of such principal amount of Securities without
the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities
to be purchased, and arrangements satisfactory to the Representatives and the
Company for the purchase of such
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Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case either the Representatives or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
11. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of Securities. Notwithstanding the foregoing, the
provisions of this Section 11 shall not apply to any termination of this
Agreement pursuant to Section 9 hereof.
12. This Agreement shall inure to the benefit of and be binding
upon the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
13. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by the first of the named Representatives set forth
in Schedule I hereto alone on behalf of the Underwriters, and any such action
taken by the Representatives jointly or by the first of the named
Representatives set forth in Schedule I hereto alone shall be binding upon the
Underwriters. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
given at the address set forth in
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Schedule I hereto. Notices to the Company shall be given to it at
[ ]; Attention: [ ].
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14. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the
same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
Very truly yours,
RUBBERMAID INCORPORATED
By:________________________
Name:
Title:
Accepted: [ ], 1996
X.X. XXXXXX SECURITIES INC.
[ ]
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
By: X.X. XXXXXX SECURITIES INC.
By: __________________________
Name:
Title:
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SCHEDULE I
Representatives: X.X. Xxxxxx Securities Inc.
[ ]
Trustee: [ ]
Underwriting Agreement
dated: [ ], 1996
Registration Statement
No.:
Title of Securities:
Aggregate principal
amount:
Purchase Price:
Price to Public:
Indenture: Indenture dated as of [ ],
1996 between the Company and [
], as Trustee.
Maturity:
Interest Rate:
Interest Payment Dates: June 1 and December 1
Optional Redemption
Provisions:
Sinking Fund
Provisions:
Closing Date and
Time of Delivery:
Closing Location: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Address for Notices
to Underwriters: X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Syndicate,
Managing Director
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SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
-----------
X.X. Xxxxxx Securities Inc. . . . . . . . . . . . . . . . . . . $
Total. . . . . . . . . . . . . . . . . . . . $
----------------
