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Exhibit 1.1
EXECUTION COPY
$130,000,000
WINDMERE-DURABLE HOLDINGS, INC.
10% SENIOR SUBORDINATED NOTES DUE 2008
UNDERWRITING AGREEMENT
DATED JULY 22, 1998
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TABLE OF CONTENTS
PAGE
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SUBSIDIARY GUARANTORS...................2
(a) Compliance with Registration Requirements...................................................2
(b) Exchange Act Compliance.....................................................................3
(c) Offering Materials Furnished to the Underwriter.............................................3
(d) Distribution of Offering Material By the Issuers............................................3
(e) The Underwriting Agreement..................................................................3
(f) Authorization of the Notes..................................................................3
(g) Authorization of the Subsidiary Guarantees..................................................4
(h) The Indenture...............................................................................4
(i) No Applicable Registration or Other Similar Rights..........................................4
(j) No Material Adverse Change..................................................................4
(k) Independent Accountants.....................................................................4
(l) Preparation of the Financial Statements.....................................................5
(m) Incorporation and Good Standing of the Company and its Subsidiaries.........................5
(n) Capitalization and Other Capital Stock Matters..............................................6
(o) Stock Exchange Listing......................................................................6
(p) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required...............................................................................6
(q) No Material Actions or Proceedings..........................................................7
(r) Intellectual Property Rights................................................................7
(s) All Necessary Permits, etc..................................................................7
(t) Title to Properties.........................................................................8
(u) Tax Law Compliance..........................................................................8
(v) Company Not an "Investment Company."........................................................8
(w) Insurance...................................................................................8
(x) No Price Stabilization or Manipulation......................................................8
(y) Related Party Transactions..................................................................9
(z) Company's Accounting System.................................................................9
(aa) Year 2000 Compliance.......................................................................9
(bb) Compliance with Environmental Laws.........................................................9
(cc) Periodic Review of Costs of Environmental Compliance......................................10
(dd) ERISA Compliance..........................................................................10
(ee) Industry Data.............................................................................11
(ff) Florida Laws..............................................................................11
(gg) Forward Looking Statements................................................................11
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES................................................11
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(a) The Securities.............................................................................11
(b) The Closing Date...........................................................................11
(c) Public Offering of the Securities..........................................................11
(d) Payment for the Securities.................................................................11
(e) Delivery of the Securities.................................................................12
(f) Delivery of Prospectus to the Underwriter..................................................12
SECTION 3. ADDITIONAL COVENANTS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS............................12
(a) Review of Proposed Amendments and Supplements..............................................12
(b) Securities Act Compliance..................................................................12
(c) Amendments and Supplements to the Prospectus and Other Securities Act Matters..............13
(d) Copies of any Amendments and Supplements to the Prospectus.................................13
(e) Blue Sky Compliance........................................................................13
(f) Use of Proceeds............................................................................13
(g) Earnings Statement.........................................................................13
(h) Periodic Reporting Obligations.............................................................14
(i) Usury Laws.................................................................................14
SECTION 4. PAYMENT OF EXPENSES..........................................................................14
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER.............................................14
(a) Accountants' Comfort Letter................................................................14
(b) Compliance with Registration Requirements; No Stop Order; No Objection from NASD...........15
(c) No Ratings Agency Change...................................................................15
(d) Opinion of Counsel for the Company.........................................................15
(e) Officers' Certificate......................................................................15
(f) Bring-down Comfort Letter..................................................................16
(g) Common Stock Closing.......................................................................16
(h) Indenture..................................................................................16
(i) Qualified Independent Underwriter Pricing Opinion..........................................16
(j) Amendment to Senior Credit Facilities......................................................16
(k) Additional Documents.......................................................................16
(l) Opinion of Counsel for the Underwriter.....................................................16
SECTION 6. REIMBURSEMENT OF UNDERWRITER'S EXPENSES......................................................17
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT..............................................................17
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SECTION 8. INDEMNIFICATION..............................................................................17
(a) Indemnification of the Underwriter.........................................................17
(b) Indemnification of the Company, its Directors and Officers.................................18
(c) Notifications and Other Indemnification Procedures.........................................19
(d) Settlements................................................................................20
(e) Indemnification of a Qualified Independent Underwriter.....................................20
SECTION 9. CONTRIBUTION.................................................................................20
SECTION 10. TERMINATION OF THIS AGREEMENT...............................................................21
SECTION 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.........................................22
SECTION 12. NOTICES.....................................................................................22
SECTION 13. SUCCESSORS..................................................................................23
SECTION 14. PARTIAL UNENFORCEABILITY....................................................................23
SECTION 15. GOVERNING LAW PROVISIONS....................................................................23
SECTION 16. GENERAL PROVISIONS..........................................................................24
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UNDERWRITING AGREEMENT
July 22, 1998
NATIONSBANC XXXXXXXXXX SECURITIES LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Introductory. Windmere-Durable Holdings, Inc., a Florida
corporation (the "Company), proposes to issue and sell to NationsBanc Xxxxxxxxxx
Securities LLC (the "Underwriter") $130,000,000 in aggregate principal amount of
its 10% Senior Subordinated Noted due 2008 (the "Notes"). The Notes will be
fully and unconditionally guaranteed (the "Subsidiary Guarantees" and,
collectively with the Notes, the "Securities") on a senior subordinated
unsecured basis, jointly and severally, by each domestic subsidiary of the
Company listed on the signature page hereto (the "Subsidiary Guarantors" and,
together with the Company, the "Issuers"). The Securities are to be issued
pursuant to the terms of an Indenture (the "Indenture") among the Company, the
Subsidiary Guarantors and State Street Bank and Trust Company, as trustee (the
"Trustee").
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-56069), which registration statement contains a form of prospectus
relating to the offering from time to time of up to $250,000,000 in aggregate
principal amount of debt securities and/or shares of Common Stock of the Company
in accordance with Rule 415 under the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder (collectively, the "Securities
Act"). Such registration statement, as amended, has been declared effective by
the Commission and the Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). In addition, the Company
has prepared and filed with the Commission a Preliminary Prospectus (as defined)
pursuant to Rule 424(b)(3) under the Securities Act in accordance with Rule
424(b)(3) under the Securities Act.
The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each date that
the Registration Statement any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date and the time
that this Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus, including any
preliminary prospectus supplement, used in connection with the offer of any
Common Shares prior to the date hereof and any preliminary prospectus included
in the Registration Statement at the Effective Date. The form of prospectus,
including any prospectus supplement, relating to the Common Shares as first
filed pursuant to Rule 424(b)(5) after the Execution Time or, if no filing
pursuant to Rule 424(b)(5) is required, such form of prospectus included in the
Registration
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Statement at the Effective Date, is hereinafter called the "Prospectus."
"Registration Statement" shall mean the registration statement referred to above
(File No. 333-56069), including all documents and financial statements
incorporated or deemed to be incorporated by reference therein, as amended at
the Execution Time and, in the event any post-effective amendment thereto
becomes effective or any supplement thereto is filed prior to the Closing Date
(as defined), shall also mean such registration statement as so amended or
supplemented. Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents and financial statements incorporated or deemed to be incorporated
therein pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (collectively, the "Exchange Act"), on or before the Effective Date
of the Registration Statement or the issue date of such Preliminary Prospectus
or Prospectus, as the case may be, and shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX"); and any reference herein to the terms, "amend," "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be deemed to be incorporated therein by reference.
The Issuers hereby confirm their agreements with the
Underwriter as follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SUBSIDIARY GUARANTORS.
The Company and the Subsidiary Guarantors, jointly and
severally, hereby represent, warrants and covenants to the Underwriter as
follows:
(a) Compliance with Registration Requirements. The Registration
Statement, as of the Effective Date of the Registration Statement and as of the
Closing Date and the Prospectus, as of the date first filed in accordance with
Rule 424(b)(5) under the Securities Act after the Execution Time and on the
Closing Date complied and will comply, as the case may be, in all material
respects with the requirements of the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as permitted by Regulation S-T under the
Securities Act), was identical in content to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Securities.
The Indenture conforms in all material respects to the requirements of the Trust
Indenture Act. The Registration Statement has been declared effective by the
Commission under the Securities Act and the Indenture has been qualified under
the Trust Indenture Act; no stop order suspending the effectiveness of the
Registration Statement is in effect and no proceedings for such purpose have
been instituted or are pending before or threatened by the Commission; and any
required filing of the Prospectus pursuant to Rule 424(b) under the Securities
Act has been made in accordance with Rule 424(b) under the Securities Act. The
Registration Statement, as of the Effective Date of the Registration Statement
(and, if any amendment to the Registration Statement or an annual report on Form
10-K has been filed by the Company with the Commission subsequent to the
Effective Date, then at the time of the most recent such filing) and as of the
Closing Date, did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Prospectus, as amended
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or supplemented, as of its issue date and as of the Closing Date did not and
will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply to
(A) statements in or omissions from the Registration Statement or the
Prospectus, or any amendments or supplements thereto, made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by NationsBanc Xxxxxxxxxx Securities LLC ("NMSI") or any
other Underwriter expressly for use in the Registration Statement or the
Prospectus or (B) that part of the Registration Statement constituting the
Statement of Eligibility and Qualification under the Trust Indenture Act ("Form
T-1"). There are no contracts or other documents required to be described in the
Prospectus or to be filed as exhibits to the Registration Statement which have
not been described, filed or incorporated by reference therein, as required.
(b) Exchange Act Compliance. The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the Exchange Act, and, when read together with the
other information in the Prospectus, at the time the Registration Statement and
any amendments thereto become effective and at the Closing Date, as the case may
be, will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(c) Offering Materials Furnished to the Underwriter. The Issuers have
delivered to the Underwriter conformed copies of the Registration Statement, the
Preliminary Prospectus and the Prospectus, as amended or supplemented, in such
quantities and at such places as the Underwriter have reasonably requested.
(d) Distribution of Offering Material By the Issuers. The Issuers have
not distributed and will not distribute, prior to the later of the Closing Date
and the completion of the Underwriter's distribution of the Securities, any
offering material in connection with the offering and sale of the Securities
other than the Preliminary Prospectuses, the Prospectus or the Registration
Statement (including any documents deemed to be incorporated by reference
therein).
(e) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
each of the Issuers, enforceable in accordance with its terms, except as rights
to indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(f) Authorization of the Notes. The Notes have been duly and validly
authorized by the Company and when duly executed by the Company in accordance
with the terms of the Indenture and, assuming due authentication of the Notes by
the Trustee, upon delivery to the Underwriter against payment therefor in
accordance with the terms hereof, will be entitled to the benefits of the
Indenture and will constitute valid and binding obligations of the Company
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enforceable in accordance with their terms, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles (whether in a proceeding in equity or at law); and the
Notes, when issued and delivered, will conform to the description thereof
contained in the Prospectus.
(g) Authorization of the Subsidiary Guarantees. The Subsidiary
Guarantees have been duly and validly authorized by each of the Subsidiary
Guarantors and when duly executed by each of the Subsidiary Guarantors in
accordance with the terms of the Indenture, upon delivery to the Underwriter
against payment therefor in accordance with the terms hereof, will be entitled
to the benefits of the Indenture and will constitute valid and binding
obligations of each of the Subsidiary Guarantors enforceable in accordance with
their terms, subject to the effects of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles (whether in a
proceeding in equity or at law); and the Subsidiary Guarantees, when issued and
delivered, will conform to the description thereof contained in the Prospectus.
(h) The Indenture. The Indenture has been duly and validly authorized
by each of the Issuers and when duly executed by each of the Issuers (assuming
due execution and delivery by the Trustee) and delivered by each of the Issuers
will constitute a valid and binding agreement of each of the Issuers,
enforceable against each of the Issuers in accordance with its terms, subject to
the effects of bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles (whether in a proceeding in equity or at law).
(i) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement; except for such rights as have been
duly waived.
(j) No Material Adverse Change. Except as otherwise disclosed in or
contemplated by the Prospectus, subsequent to the respective dates as of which
information is given in the Prospectus: (i) there has been no material adverse
change, or any development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations, whether or not arising from transactions in
the ordinary course of business, of the Company and its subsidiaries, considered
as one entity (any such change is called a "Material Adverse Change"); (ii) the
Company and its subsidiaries, considered as one entity, have not incurred any
material liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has been no
dividend or distribution of any kind declared, paid or made by the Company or,
except for dividends paid to the Company or other subsidiaries, any of its
subsidiaries on any class of capital stock or repurchase or redemption by the
Company or any of its subsidiaries of any class of capital stock.
(k) Independent Accountants. Xxxxx Xxxxxxxx LLP and Ernst & Young LLP,
who have expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) and
supporting schedules filed with the Commission as a part of the Registration
Statement and included in the Prospectus, are
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independent public or certified public accountants as required by the Securities
Act and the Exchange Act.
(l) Preparation of the Financial Statements. The financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, or in any supplement thereto or amendment thereof, present fairly,
in all material respects (i) the consolidated financial position of the Company
and its subsidiaries and (ii) the financial position of the Household Products
Group (excluding the Cleaning and Lighting Divisions) ("HPG") of The Black &
Xxxxxx Corporation as of and at the dates indicated and the results of their
respective operations and cash flows for the periods specified. The supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. Such financial statements and supporting
schedules have been prepared in conformity with generally accepted accounting
principles as applied in the United States applied on a consistent basis
throughout the periods involved, except as may be expressly stated in the
related notes thereto. No other financial statements or supporting schedules are
required to be included in the Registration Statement. The financial data set
forth in the Prospectus under the captions "Prospectus Summary--Summary
Historical Financial Information," "Selected Historical Financial Information"
and "Capitalization" fairly present the information set forth therein on a basis
consistent with that of the audited financial statements contained in the
Registration Statement. The pro forma financial statements of the Company and
its subsidiaries and the related notes thereto included under the caption
"Prospectus Summary -- Unaudited Pro Forma Combined Financial Information" and
"Unaudited Pro Forma Combined Financial Information" and elsewhere in the
Prospectus and in the Registration Statement present fairly the information
contained therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly presented on the bases described therein, and the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein. The Company's ratios of earnings to fixed charges set forth in the
Prospectus under the caption "Prospectus Summary -- Summary Historical Financial
Information," "Selected Historical Financial Information" and "Ratio of Earnings
to Fixed Charges" have been calculated in compliance with Item 503(d) of
Regulation S-K under the Securities Act.
(m) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company and its subsidiaries has been duly
incorporated or organized, as applicable, and is validly existing as a
corporation or limited liability company, as applicable, in good standing under
the laws of the jurisdiction of its incorporation and has corporate or limited
liability company, as applicable, power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and,
in the case of the Company and the Subsidiary Guarantors, to enter into and
perform its obligations under this Agreement. Each foreign subsidiary is duly
qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except for
such jurisdictions where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a Material Adverse
Change. All of the issued and outstanding capital stock of each subsidiary has
been duly authorized and validly issued, is fully paid and nonassessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim, except for such
security interests, mortgages,
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pledges, liens, encumbrances or claims that are disclosed in the Prospectus. The
Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997 and the
subsidiaries listed on Schedule 1 attached hereto.
(n) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" (other than for subsequent
issuances, if any, pursuant to employee benefit plans described in the
Prospectus or upon exercise of outstanding options or warrants described in the
Prospectus). All of the issued and outstanding shares of Common Stock have been
duly authorized and validly issued, are fully paid and nonassessable and have
been issued in compliance with federal and state securities laws (with respect
to Canadian law, (i) assuming that (A) the Notes offered in Canada are offered
only in Alberta, Manitoba, Ontario and Quebec and (B) purchasers of the Notes in
Alberta, Manitoba and Quebec are Permitted Purchasers (as defined in the
Memorandum dated July 20, 1998, as amended, from Stikeman, Elliot, Canadian
counsel to the Underwriter, to the Company (the "Canadian Memo")) and (ii) in
reliance on the Canadian Memo). None of the outstanding shares of Common Stock
were issued in violation of any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities of the Company.
There are no authorized or outstanding options, warrants, preemptive rights,
rights of first refusal or other rights to purchase, or equity or debt
securities convertible into or exchangeable or exercisable for, any capital
stock of the Company or any of its subsidiaries other than those accurately
described in the Prospectus. The description of the Company's stock option,
stock bonus and other stock plans or arrangements, and the options or other
rights granted thereunder, contained in the Prospectus accurately and fairly
presents the information required to be shown with respect to such plans,
arrangements, options and rights.
(o) Stock Exchange Listing. The Common Stock is registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and is
listed on The New York Stock Exchange (the "NYSE"), and the Company has taken no
action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the NYSE, nor has the Company received any notification that the
Commission or the NYSE is contemplating terminating such registration or
listing.
(p) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or is in default (or,
with the giving of notice or lapse of time, would be in default) ("Default")
under any indenture, mortgage, loan or credit agreement, note, contract,
franchise, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound (including,
without limitation, the Senior Credit Facilities (as defined in the
Prospectus)), or to which any of the property or assets of the Company or any of
its subsidiaries is subject (each, an "Existing Instrument"), except for such
Defaults as would not, individually or in the aggregate, result in a Material
Adverse Change or such Defaults that are described in the Prospectus. Each of
the Issuers' execution, delivery and performance of this Agreement and the
Indenture and consummation of the transactions contemplated hereby and by the
Prospectus (i) have been duly authorized by all necessary corporate action and
will not result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary, (ii) will not conflict with or constitute a
breach of, or Default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
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any of its subsidiaries pursuant to, or require the consent of any other party
to, any Existing Instrument as in effect on the Closing Date, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse Change or such
Defaults that are described in the Prospectus and (iii) will not result in any
violation of any law, administrative regulation or administrative or court
decree applicable to the Company or any subsidiary (with respect to Canadian
law, (i) assuming that (A) the Notes offered in Canada are offered only in
Alberta, Manitoba, Ontario and Quebec and (B) purchasers of the Notes in
Alberta, Manitoba and Quebec are Permitted Purchasers and (ii) in reliance on
the Canadian Memo). No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Company's execution, delivery and
performance of this Agreement and the Indenture and consummation of the
transactions contemplated hereby and by the Prospectus, except such as have been
obtained or made by the Company and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws and from the
National Association of Securities Dealers, Inc. (the "NASD") (with respect to
Canadian law, (i) assuming that (A) the Notes offered in Canada are offered only
in Alberta, Manitoba, Ontario and Quebec and (B) purchasers of the Notes in
Alberta, Manitoba and Quebec are Permitted Purchasers and (ii) in reliance on
the Canadian Memo).
(q) No Material Actions or Proceedings. Except as otherwise disclosed
in the Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the Issuers' knowledge, threatened (i) against or
affecting the Company or any of its subsidiaries, (ii) which have as the subject
thereof any officer or director of, or property owned or leased by, the Company
or any of its subsidiaries or (iii) relating to discrimination matters, where in
any such case (A) there is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company or such subsidiary and
(B) any such action, suit or proceeding, if so determined adversely, would
reasonably be expected to result in a Material Adverse Change or adversely
affect the consummation of the transactions contemplated by this Agreement. No
material labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the best of the Issuers' knowledge, is threatened or
imminent.
(r) Intellectual Property Rights. The Company and its subsidiaries own
or possess sufficient trademarks, trade names, patent rights, copyrights,
licenses, approvals, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") reasonably necessary to conduct their businesses
as now conducted; and except as otherwise disclosed in the Prospectus, the
expected expiration of any of such Intellectual Property Rights would not result
in a Material Adverse Change. Neither the Company nor any of its subsidiaries
has received any notice of infringement or conflict with asserted Intellectual
Property Rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would result in a Material Adverse Change.
(s) All Necessary Permits, etc. The Company and each subsidiary possess
such valid and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, except where the failure to possess such
certificates, authorizations or permits would not result in a Material Adverse
Change. Neither the Company nor any subsidiary has received any notice of
proceedings relating to the revocation or modification of, or non-compliance
with, any such
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certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result in a
Material Adverse Change.
(t) Title to Properties. The Company and each of its subsidiaries has
good and marketable title to all the properties and assets reflected as owned in
the financial statements referred to in Section 1(l) above (or elsewhere in the
Prospectus), in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except (i) such as do
not materially and adversely affect the value of such property and do not
materially interfere with the use made or proposed to be made of such property
by the Company or such subsidiary, (ii) as set forth in the Registration
Statement and the Prospectus or (iii) as could not reasonably be expected to
result in a Material Adverse Change. The real property, improvements, equipment
and personal property held under lease by the Company or any subsidiary are held
under valid and enforceable leases, with such exceptions as are not material and
do not materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by the Company or
such subsidiary.
(u) Tax Law Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns, other
than those returns which failure to file would not result in a Material Adverse
Change and have paid all taxes required to be paid by any of them and, if due
and payable, any related or similar assessment, fine or penalty levied against
any of them other than those amounts being contested in good faith or those
amounts which the failure to pay would not result in a Material Adverse Change.
The Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 1(j) above in respect of all
federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has not been
finally determined.
(v) Company Not an "Investment Company." The Company has been advised
of the rules and requirements under the Investment Company Act of 1940, as
amended (the "Investment Company Act"). The Company is not, and after receipt of
payment for the Securities will not be, an "investment company" within the
meaning of the Investment Company Act and will conduct its business in a manner
so that it will not become subject to the Investment Company Act.
(w) Insurance. Each of the Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are generally
deemed adequate and customary for their businesses including, but not limited
to, policies covering real and personal property owned or leased by the Company
and its subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes. The Company has no reason to believe that it or any subsidiary will
not be able (i) to renew its existing insurance coverage as and when such
policies expire or (ii) to obtain comparable coverage from similar institutions
as may be necessary or appropriate to conduct its business as now conducted and
at a cost that would not result in a Material Adverse Change.
(x) No Price Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to or that might
be reasonably expected to
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cause or result in stabilization or manipulation of the price of the Securities
to facilitate the sale or resale of the Securities.
(y) Related Party Transactions. There are no business relationships or
related-party transactions involving the Company or any subsidiary or any other
person required to be described in the Prospectus which have not been described
as required.
(z) Company's Accounting System. The Company maintains a system of
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles as applied in the United States and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(aa) Year 2000 Compliance. The Company has (i) initiated a review and
assessment of all areas within its and each of its subsidiaries' business and
operations (including those affected by suppliers, vendors and customers) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Company or any of its subsidiaries (or
suppliers, vendors and customers) that are material to the Company's or any of
its subsidiaries' business or operations may be unable to recognize and perform
properly date-sensitive functions involving certain dates on and after January
1, 2000), (ii) developed a plan and timeline for addressing the Year 2000
Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. Based on the actions taken by the Company to
date, the Company is not aware of any reason its suppliers, vendors and
customers would fail to be Year 2000 Compliant (as defined). Based on the
foregoing, the Company believes that all computer applications that are material
to its or any of its subsidiaries' business and operations are reasonably
expected on a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year 2000
Compliant"), except to the extent that a failure to do so could not reasonably
be expected to have Material Adverse Change.
(bb) Compliance with Environmental Laws. Except as would not,
individually or in the aggregate, result in a Material Adverse Change (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign law or regulation relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum and
petroleum products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Materials of Environment Concern
(collectively, "Environmental Laws"), which violation includes, but is not
limited to, noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or its subsidiaries
under applicable Environmental Laws, or noncompliance with the terms and
conditions thereof, nor has the Company or any of its subsidiaries received any
written communication, whether from a governmental authority, citizens group,
employee or otherwise,
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that alleges that the Company or any of its subsidiaries is in violation of any
Environmental Law; (ii) there is no claim, action or cause of action filed with
a court or governmental authority, no investigation with respect to which the
Company has received written notice, and no written notice by any person or
entity alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property damages,
personal injuries, attorneys' fees or penalties arising out of, based on or
resulting from the presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased or operated by the Company
or any of its subsidiaries, now or in the past (collectively, "Environmental
Claims"), pending or, to the Issuers' knowledge, threatened against the Company
or any of its subsidiaries or any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law; and (iii) to the Issuers'
knowledge, there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release,
emission, discharge, presence or disposal of any Material of Environmental
Concern, that reasonably could result in a violation of any Environmental Law or
form the basis of a potential Environmental Claim against the Company or any of
its subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law.
(cc) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its established
reserves, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, result in a Material
Adverse Change.
(dd) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, its subsidiaries or their "ERISA Affiliates" (as defined below) are
in compliance in all material respects with ERISA. "ERISA Affiliate" means, with
respect to the Company or a subsidiary, any member of any group of organizations
described in Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of
1986, as amended, and the regulations and published interpretations thereunder
(the "Code") of which the Company or such subsidiary is a member. No "reportable
event" (as defined under ERISA) has occurred or is reasonably expected to occur
with respect to any "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any of their
ERISA Affiliates, if such "employee benefit plan" were terminated, would have
any "amount of unfunded benefit liabilities" (as defined under ERISA). Neither
the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
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established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(ee) Industry Data. To the Issuers' knowledge, the industry-related
data included in the Registration Statement and the Prospectus is true and
accurate in all material respects.
(ff) Florida Laws. The Issuers have complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(gg) Forward Looking Statements. The forward looking statements
included in the Registration Statement and the Prospectus reflect the good faith
belief of the Issuers and are based on assumptions the Issuers believe to be
reasonable.
Any certificate signed by an officer of any Issuer and
delivered to the Underwriter or to counsel for the Underwriter shall be deemed
to be a representation and warranty by such Issuer to each Underwriter as to the
matters set forth therein.
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) The Securities. The Issuers jointly and severally agree, to issue
and sell the Securities to the Underwriter upon the terms set forth herein. On
the basis of the representations, warranties and agreements contained herein,
and upon the terms but subject to the conditions set forth herein, the
Underwriter agrees to purchase the Securities from the Issuers. The Underwriter
will purchase the aggregate principal amount of Notes at an aggregate purchase
price equal to 97% of the principal amount thereof.
(b) The Closing Date. Delivery of the Securities to be purchased by the
Underwriter and payment therefor shall be made at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 a.m. New York time, on
July 27, 1998 or such other time and date as the Underwriter shall designate by
notice to the Company (the time and date of such closing are called the "Closing
Date").
(c) Public Offering of the Securities. The Underwriter hereby advises
the Issuers that the Underwriter intends to offer for sale to the public, as
described in the Prospectus, the Securities as soon after this Agreement has
been executed and the Registration Statement has been declared effective as the
Underwriter, in its sole judgment, has determined is advisable and practicable.
(d) Payment for the Securities. Payment for the Securities shall be
made at the Closing Date by wire transfer of immediately available funds to the
order of the Company.
It is understood that the Underwriter has been authorized, for
its own account and the accounts of the Underwriter, to accept delivery of and
receipt for, and make payment of the purchase price for, the Securities. The
Underwriter, individually and not as an Underwriter, may (but shall not be
obligated to) make payment for any Securities to be purchased by the Underwriter
whose funds shall not have been received by the Underwriter, in its capacity as
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Underwriter, by the Closing Date, as the case may be, for the account of the
Underwriter, but any such payment shall not relieve the Underwriter from any of
its obligations under this Agreement.
(e) Delivery of the Securities. The Issuers shall deliver, or cause to
be delivered, to the Underwriter for the accounts of the Underwriter
certificates representing the Securities at the Closing Date, against the
irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The certificates for the Securities shall
be in definitive fully registered form and registered in the name of Cede & Co.,
as nominee of the Depository Trust Company ("DTC"), or such other name or names
and in such denominations as the Underwriter shall have requested at least two
full business days prior to the Closing Date and shall be made available for
inspection on the business day preceding the Closing Date at a location in New
York City as the Underwriter may designate. Time shall be of the essence, and
delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriter.
(f) Delivery of Prospectus to the Underwriter. Not later than 12:00
p.m. on the second business day following the date the Securities are released
by the Underwriter for sale to the public, the Issuers shall deliver or cause to
be delivered copies of the Prospectus in such quantities and at such places as
the Underwriter shall reasonably request.
SECTION 3. ADDITIONAL COVENANTS OF THE COMPANY AND THE SUBSIDIARY
GUARANTORS.
The Company and the Subsidiary Guarantors jointly and severally further covenant
and agree with the Underwriter as follows:
(a) Review of Proposed Amendments and Supplements. During such period
beginning on the date hereof and ending on the later of the Closing Date or such
date, as in the opinion of counsel for the Underwriter, the Prospectus is no
longer required by law to be delivered in connection with sales by an
Underwriter or dealer (the "Prospectus Delivery Period"), prior to amending or
supplementing the Registration Statement or the Prospectus, the Company shall
furnish to the Underwriter for review a copy of each such proposed amendment or
supplement, and the Company shall not file any such proposed amendment or
supplement to which the Underwriter reasonably object within a reasonable period
of time thereafter.
(b) Securities Act Compliance. After the date of this Agreement, the
Company shall promptly advise the Underwriter in writing (i) of the receipt of
any comments of, or requests for additional or supplemental information from,
the Commission, (ii) of the time and date of any filing of any post-effective
amendment to the Registration Statement or any amendment or supplement to any
Preliminary Prospectus or the Prospectus, (iii) of the time and date that any
post-effective amendment to the Registration Statement becomes effective and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, or of any proceedings to remove, suspend or
terminate from listing or quotation the Common Stock from any securities
exchange upon which it is listed for trading or included or designated for
quotation, or of the threatening or initiation of any proceedings for any of
such purposes. If the Commission shall enter any such stop order at any time,
the Issuers will use their best efforts to obtain the lifting of such order at
the earliest possible moment. Additionally, the Issuers agree that it shall
comply with the
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provisions of Rule 424(b) under the Securities Act and will use its reasonable
efforts to confirm that any filings made by the Company under Rule 424(b) were
received in a timely manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities
Act Matters. If, during the Prospectus Delivery Period, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if in the opinion of the Underwriter or counsel for the Underwriter it is
otherwise necessary to amend or supplement the Prospectus to comply with law,
the Issuers agree to promptly prepare (subject to Section 3(a) hereof), file
with the Commission and furnish at its own expense to the Underwriter and to
dealers, amendments or supplements to the Prospectus so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus, as amended or supplemented, will comply with law.
(d) Copies of any Amendments and Supplements to the Prospectus. The
Issuers agree to furnish to the Underwriter, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any amendments
and supplements thereto (including any documents incorporated or deemed
incorporated by reference therein) as the Underwriter may reasonably request.
(e) Blue Sky Compliance. The Issuers shall cooperate with the
Underwriter and counsel for the Underwriter to qualify or register the
Securities for sale under (or obtain exemptions from the application of) the
state securities or blue sky laws or Canadian provincial Securities laws of
those jurisdictions designated by the Underwriter, shall comply with such laws
and shall continue such qualifications, registrations and exemptions in effect
so long as required for the distribution of the Securities. None of the Issuers
shall be required to qualify as a foreign corporation or to take any action that
would subject it to general service of process in any such jurisdiction where it
is not presently qualified or where it would be subject to taxation as a foreign
corporation. The Issuers will advise the Underwriter promptly of the suspension
of the qualification or registration of (or any such exemption relating to) the
Securities for offering, sale or trading in any jurisdiction or any initiation
or threat of any proceeding for any such purpose of which the Issuers shall
become aware, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Issuers shall use their best
efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Securities sold by the Issuers in the manner described under the
caption "Use of Proceeds" in the Prospectus.
(g) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Underwriter an earnings
statement (which need not be audited) covering the twelve-month period ending
June 30, 1999 that satisfies the provisions of Section 11(a) of the Securities
Act.
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(h) Periodic Reporting Obligations. During the Prospectus Delivery
Period the Company shall file, on a timely basis, with the Commission and The
New York Stock Exchange all reports and documents required to be filed under the
Exchange Act.
(i) Usury Laws. The Issuers shall not voluntarily claim, and will
actively resist any attempts to claim, the benefits of any usury laws against
the holders of the Securities.
The Underwriter may, in its sole discretion, waive in writing
the performance by the Issuers of any one or more of the foregoing covenants or
modify the time for their performance; provided, however, that no such
modification shall extend for period during which the Company must so perform
without the prior consent of the Company.
SECTION 4. PAYMENT OF EXPENSES.
The Company and the Subsidiary Guarantors jointly and
severally agree to pay all costs, fees and expenses incurred in connection with
the performance of their obligations hereunder and in connection with the
transactions contemplated hereby, including without limitation (i) all expenses
incident to the issuance and delivery of the Securities (including all printing
and engraving costs), (ii) all fees and expenses of the Trustee, (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Securities to the Underwriter, (iv) all fees and expenses of the
Issuers' counsel, independent public or certified public accountants and other
advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each Preliminary Prospectus and the Prospectus, and
all amendments and supplements thereto, and this Agreement, (vi) all filing
fees, attorneys' fees and expenses incurred by the Issuers or the Underwriter in
connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Securities for offer
and sale under the state securities or blue sky laws, and preparing and printing
a "Blue Sky Survey" or memorandum, and any supplements thereto, advising the
Underwriter of such qualifications, registrations and exemptions, (vii) the
filing fees incident to, and the reasonable fees and expenses of counsel for the
Underwriter in connection with, the NASD's review and approval of the
Underwriter's participation in the offering and distribution of the Securities,
and (viii) all other fees, costs and expenses referred to in Item 14 of Part II
of the Registration Statement. Except as provided in this Section 4, Section 6,
Section 8 and Section 9 hereof, the Underwriter shall pay its own expenses,
including the fees and disbursements of its counsel.
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER.
The obligations of the Underwriter to purchase and pay for the
Securities as provided herein on the Closing Date, if any, shall be subject to
the accuracy of the representations and warranties on the part of the Issuers
set forth in Section 1 hereof as of the date hereof and as of the Closing Date
as though then made as though then made, to the timely performance by each of
the Issuers of its covenants and other obligations hereunder, and to each of the
following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Underwriter
shall have received from each of Xxxxx Xxxxxxxx LLP, independent certified
public accountants for the
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Company, and Ernst & Young LLP, independent public auditors for HPG, a letter
dated the date hereof addressed to the Underwriter, in form and substance
satisfactory to the Underwriter and their counsel, containing statements and
information of the type ordinarily included in accountant's "comfort letters" to
underwriters, delivered according to Statement of Auditing Standards No. 72 (or
any successor bulletin), with respect to the audited and unaudited financial
statements and certain financial information of the Company and its
subsidiaries, and HPG contained in the Registration Statement and the
Prospectus.
(b) Compliance with Registration Requirements; No Stop Order; No
Objection from NASD. For the period from and after effectiveness of this
Agreement and prior to the Closing Date, if any:
(i) the Company, if required, shall have filed the Prospectus with the
Commission in the manner and within the time period required by Rule 424(b)(5)
under the Securities Act;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment to the Registration Statement, shall
be in effect and no proceedings for such purpose shall have been instituted or,
to the Company's knowledge, threatened by the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) No Ratings Agency Change. For the period from and after the date of
this Agreement and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any securities of the
Company or any of its subsidiaries by any "nationally recognized statistical
rating organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(d) Opinion of Counsel for the Company. On the Closing Date, the
Underwriter shall have received the favorable opinion of Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, counsel for the Issuers, dated as of such
Closing Date, in substantially the form attached as Exhibit A.
(e) Officers' Certificate. On the Closing Date the Underwriter shall
have received a written certificate executed by the Chairman of the Board, Chief
Executive Officer and President of the Company and the Chief Financial Officer
of the Company, dated as of such Closing Date, to the effect set forth in
subsections (b)(ii) and (c) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior
to such Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the Issuers set
forth in Section 1 of this Agreement are true and correct with the same force
and effect as though expressly made on and as of such Closing Date; and
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(iii) each of the Issuers has complied in all material respects with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date.
(f) Bring-down Comfort Letter. On the Closing Date, the Underwriter
shall have received from each of Xxxxx Xxxxxxxx LLP, independent public or
certified public accountants for the Company, and Ernst & Young LLP, independent
public or certified public accountants for HPG, a letter dated such date, in
form and substance satisfactory to the Underwriter, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to
subsection (a) of this Section 5, except that the specified date referred to
therein for the carrying out of procedures shall be no more than three business
days prior to the Closing Date.
(g) Common Stock Closing. The offering of the Common Stock shall close
simultaneously with the offering of the Securities on Closing Date.
(h) Indenture. The Issuers and the Trustee shall have executed the
Indenture, and the Underwriter shall have received an executed copy thereof.
(i) Qualified Independent Underwriter Pricing Opinion. The Underwriter
shall have received the pricing opinion from Xxxxxxx Xxxxx & Associates, Inc.
("Xxxxxxx Xxxxx"), as qualified independent underwriter.
(j) Amendment to Senior Credit Facilities. The Company, the Subsidiary
Guarantors party thereto and the lenders party thereto shall have executed an
amendment to the Senior Credit Facilities (as defined in the Prospectus)
increasing the permitted outstanding senior subordinated indebtedness to
$150,000,000, and the Underwriter shall have received an executed copy thereof.
(k) Additional Documents. On or before the Closing Date, the
Underwriter and counsel for the Underwriter shall have received such
information, documents and opinions as they may reasonably require for the
purposes of enabling them to pass upon the issuance and sale of the Securities
as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.
(l) Opinion of Counsel for the Underwriter. On the Closing Date, the
Underwriter shall have received the favorable opinion of Xxxxxx & Xxxxxxx,
counsel for the Underwriter, dated as of such Closing Date.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Underwriter by notice to the Company at any time on or prior to the Closing
Date, which termination shall be without liability on the part of any party to
any other party, except that Section 4, Section 6, Section 8 and Section 9
hereof shall at all times be effective and shall survive such termination.
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SECTION 6. REIMBURSEMENT OF UNDERWRITER'S EXPENSES.
If this Agreement is terminated by the Underwriter pursuant to
Section 5, Section 7 or Section 10 hereof, or if the sale to the Underwriter of
the Securities on the Closing Date is not consummated because of any refusal,
inability or failure on the part of any Issuer to perform any agreement herein
or to comply with any provision hereof, the Issuers agree to reimburse the
Underwriter, severally, upon demand for all documented out-of-pocket expenses
that shall have been reasonably incurred by the Underwriter in connection with
the proposed purchase and the offering and sale of the Securities, including but
not limited to reasonable fees and disbursements of counsel, printing expenses,
travel expenses, postage, facsimile and telephone charges.
SECTION 7. EFFECTIVENESS OF THIS AGREEMENT.
This Agreement shall not become effective until the later of
(i) the execution of this Agreement by the parties hereto and (ii) notification
by the Commission to the Company of the effectiveness of the Registration
Statement under the Securities Act.
Prior to such effectiveness, this Agreement may be terminated
by any party by notice to each of the other parties hereto, and any such
termination shall be without liability on the part of (a) the Issuers to any
Underwriter, except that the Issuers shall be obligated to reimburse the
expenses of the Underwriter pursuant to Sections 4 and 6 hereof, (b) of the
Underwriter to any of the Issuers, or (c) of any party hereto to any other party
except that the provisions of Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
SECTION 8. INDEMNIFICATION.
(a) Indemnification of the Underwriter. Each of the Issuers agree,
severally and not jointly, to indemnify and hold harmless each Underwriter, its
officers and employees, and each person, if any, who controls the Underwriter
within the meaning of the Securities Act or the Exchange Act against any loss,
claim, damage, liability or expense, as incurred, to which the Underwriter, any
such officer or employee, or such controlling person may become subject, under
the Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based (i) upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading; or (ii) upon any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; or (iii) in whole or in part upon any material
inaccuracy in the representations and warranties of the Issuers contained
herein; or (iv) in whole or in part upon any material failure of the Issuers to
perform their obligations hereunder or under law; or (v) any act or failure to
act or any alleged act or failure to act by the Underwriter in connection with,
or relating in any manner
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to, the Securities or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon any matter covered by clause (i) or (ii) above, provided
that the Issuers shall not be liable under this clause (v) to the extent that a
court of competent jurisdiction shall have determined by a final judgment that
such loss, claim, damage, liability or action resulted directly from any such
acts or failures to act undertaken or omitted to be taken by the Underwriter
through its bad faith or willful misconduct; and to reimburse the Underwriter
and each such controlling person for any and all expenses (including the
reasonable fees and disbursements of counsel chosen by the Underwriter) as such
expenses are reasonably incurred by the Underwriter or such controlling person
in connection with investigating, defending, settling, compromising or paying
any such loss, claim, damage, liability, expense or action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss, claim,
damage, liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of the Underwriter
expressly for use in the Registration Statement, any Preliminary Prospectus or
the Prospectus (or any amendment or supplement thereto); and provided, further,
that with respect to any Preliminary Prospectus, the foregoing indemnity shall
not inure to the benefit of the Underwriter from whom the person asserting any
loss, claim, damage, liability or expense purchased Securities, or any person
controlling the Underwriter, if copies of the Prospectus were timely delivered
to the Underwriter pursuant to Section 2 and a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Underwriter to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or expense. The indemnity set forth
in this Section 8(a) shall be in addition to any liabilities that the Issuers
may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. The
Underwriter agrees to indemnify and hold harmless each Issuer, each of its
directors, each of the Company's officers who signed the Registration Statement
and each person, if any, who controls any Issuer within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability
or expense, as incurred, to which such Issuer, or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of the Underwriter), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or alleged untrue
statement of a material fact contained in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or arises out of or is based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with written information furnished to the Issuers by the
Underwriter expressly for use therein; and to reimburse such Issuer, or any such
director, officer or controlling person for any legal and other expense
reasonably incurred by
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such Issuer, or any such director, officer or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. The Issuers hereby acknowledge that
the only information that the Underwriter has furnished to the Issuers expressly
for use in the Registration Statement, any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) are the statements set forth
(A) as the first sentence of the last paragraph of text on the cover page of the
Prospectus concerning the terms of the offering by the Underwriter, (B) the
paragraph on the inside front cover page of the Prospectus concerning
stabilization by the Underwriter and (C) the third paragraph and the last
sentence of the fifth paragraph under the caption "Underwriting" in the
Prospectus; and the Underwriter confirm that such statements are correct. The
indemnity set forth in this Section 8(b) shall be in addition to any liabilities
that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party to the extent it is not prejudiced as a
proximate result of such failure. In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to seek indemnity
from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to assume such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by the indemnifying
party (the Underwriter in the case of Section 8(b) and Section 9), representing
the indemnified parties who are parties to such action) or (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.
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(d) Settlements. The indemnifying party under this Section 8 shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there is a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
8(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding
in respect of which any indemnified party is or could have been a party and
indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
(e) Indemnification of a Qualified Independent Underwriter. Without
limitation and in addition to its obligations under the other subsections of
this Section 8, the Issuers agree to indemnify and hold harmless Xxxxxxx Xxxxx
and each person, if any, who controls Xxxxxxx Xxxxx within the meaning of the
Securities Act or the Exchange Act from and against any loss, claim, damage,
liabilities or expense, as incurred, arising solely out of or solely based upon
Xxxxxxx Xxxxx' acting as a "qualified independent underwriter" (within the
meaning of Rule 2720 to the NASD's Conduct Rules) in connection with the
offering contemplated by this Agreement, and agrees to reimburse each such
indemnified person for any legal or other expense reasonably incurred by them in
connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided, however, that
the Issuers shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense results from the gross negligence or
willful misconduct of Xxxxxxx Xxxxx.
SECTION 9. CONTRIBUTION.
If the indemnification provided for in Section 8 hereof is for
any reason held to be unavailable to or otherwise insufficient to hold harmless
an indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers, on the one hand, and the Underwriter, on the
other hand, from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Issuers, on the one hand, and the Underwriter, on the other hand, in
connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative
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benefits received by the Issuers, on the one hand, and the Underwriter, on the
other hand, in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Company, and the total underwriting
discount received by the Underwriter, in each case as set forth on the front
cover page of the Prospectus bear to the aggregate initial public offering price
of the Securities as set forth on such cover. The relative fault of the Issuers,
on the one hand, and the Underwriter, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact or any such inaccurate or alleged inaccurate representation or warranty
relates to information supplied by the Issuers, on the one hand, or the
Underwriter, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8(c) hereof,
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim. The provisions
set forth in Section 8(c) hereof with respect to notice of commencement of any
action shall apply if a claim for contribution is to be made under this Section
9; provided, however, that no additional notice shall be required with respect
to any action for which notice has been given under Section 8(c) hereof for
purposes of indemnification.
The Issuers and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriter were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, the
Underwriter shall be required to contribute any amount in excess of the
underwriting commissions received by the Underwriter in connection with the
Securities underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each officer and employee of the Underwriter and each person, if any, who
controls the Underwriter within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Underwriter, and
each director of the Issuers, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Issuers with
the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as the Issuers.
SECTION 10. TERMINATION OF THIS AGREEMENT.
Prior to the Closing Date this Agreement maybe terminated by
the Underwriter by notice given to the Company if at any time (i) trading or
quotation in any of the Company's securities shall have been suspended or
limited by the Commission or by The New York Stock Exchange, or trading in
securities generally on either the Nasdaq Stock Market or The New York Stock
Exchange shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock exchanges by the
Commission or the
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NASD; (ii) a general banking moratorium shall have been declared by any of
federal or state authorities; (iii) there shall have occurred any outbreak or
escalation of national or international hostilities or any crisis or calamity,
or any change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial change in
United States' or international political, financial or economic conditions, as
in the judgment of the Underwriter is material and adverse and makes it
impracticable to market the Securities in the manner and on the terms described
in the Prospectus or to enforce contracts for the sale of securities; (iv) in
the judgment of the Underwriter there shall have occurred any Material Adverse
Change; or (v) the Issuers shall have sustained a loss by strike, fire, flood,
earthquake, accident or other calamity of such character as in the judgment of
the Underwriter may interfere materially with the conduct of the business and
operations of the Issuers regardless of whether or not such loss shall have been
insured. Any termination pursuant to this Section 10 shall be without liability
on the part of (a) the Issuers to any Underwriter, except that the Issuers shall
be obligated to reimburse the expenses of the Underwriter pursuant to Sections 4
and 6 hereof, (b) any Underwriter to the Issuers, or (c) of any party hereto to
any other party except that the provisions of Section 8 and Section 9 hereof
shall at all times be effective and shall survive such termination.
SECTION 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY.
The respective indemnities, agreements, representations,
warranties and other statements of the Issuers, their officers and of the
Underwriter 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 Issuers or any of its or their partners, officers or
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Securities sold hereunder. The provisions of
Sections 3(c), 3(g), 6, 8, 9 and 11 shall survive the termination or
cancellation of this Agreement.
SECTION 12. NOTICES.
All communications hereunder shall be in writing and shall be
mailed, hand delivered, overnight couriered or telecopied and confirmed to the
parties hereto as follows:
If to the Underwriter:
NationsBanc Xxxxxxxxxx Securities LLC
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
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Attention: Xxxx X. Xxxxxxxxx, Esq.
If to the Issuers:
Windmere-Durable Holdings, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxxxx Traurig Xxxxxxx Xxxxxx Xxxxx & Xxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 13. SUCCESSORS.
This Agreement will inure to the benefit of and be binding
upon the parties hereto, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9 hereof,
and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term "successors" shall not include any
purchaser of the Securities as such from any of the Underwriter merely by reason
of such purchase.
SECTION 14. PARTIAL UNENFORCEABILITY.
The invalidity or unenforceability of any Section, paragraph
or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph
or provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
SECTION 15. GOVERNING LAW PROVISIONS.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES OF ANY JURISDICTION.
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SECTION 16. GENERAL PROVISIONS.
This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The Table of
Contents and the Section headings herein are for the convenience of the parties
only and shall not affect the construction or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a
sophisticated business person who was adequately represented by counsel during
negotiations regarding the provisions hereof, including, without limitation, the
indemnification provisions of Section 8 hereof and the contribution provisions
of Section 9 hereof, and is fully informed regarding said provisions. Each of
the parties hereto further acknowledges that the provisions of Sections 8 and 9
hereto fairly allocate the risks in light of the ability of the parties to
investigate the Issuers, their affairs and their business in order to assure
that adequate disclosure has been made in the Registration Statement, any
preliminary prospectus and the Prospectus (and any amendments and supplements
thereto), as required by the Securities Act and the Exchange Act.
[Signature page follows]
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Issuers the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
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Very truly yours,
WINDMERE-DURABLE HOLDINGS, INC.
/s/ Xxxxx X. Xxxxxxxx
BY:____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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WINDMERE HOLDINGS CORPORATION II,
as Guarantor
/s/ Xxxxx Xxxxxxx
BY:____________________________________
Name: Xxxxx Xxxxxxx
Title: Secretary
WINDMERE INNOVATIVE PET
PRODEUCTS, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
EDI MASTERS, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
WINDMERE CORPORATION, as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
BAY BOOKS AND TAPES, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Secretary
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HOUSEHOLD PRODUCTS, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
BY:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
HP DELAWARE, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
HP AMERICAS, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
HPG LLC, as Guarantor
BY: Household Products, Inc.,
manager, member
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name:
Title:
HP INTELLECTUAL CORP., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
WINDMERE HOLDINGS CORPORATION,
as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
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JERDON PRODUCTS, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
BY:____________________________________
Name: Xxxxx Xxxxxxx
Title: Secretary
FORTUNE PRODUCTS, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
CONSUMER PRODUCTS AMERICAS, INC.,
as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Secretary
WINDMERE FAN PRODUCTS, INC.,
as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Treasurer
WD DELAWARE, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Secretary
WD DELAWARE II, INC., as Guarantor
/s/ Xxxxx Xxxxxxx
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Secretary
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The foregoing Agreement is hereby confirmed and accepted by
the Underwriter as of the date first above written.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
/s/ Xxxxx X. Xxxx
By: _______________________________
Name: Xxxxx X. Xxxx, Xx.
Title: Managing Director
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EXHIBIT A
Opinion of counsel for the Company to be delivered pursuant to Section 5(d)
of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any
supplements thereto at the Closing Date.
A-1
