200,000,000 AGGREGATE PRINCIPAL AMOUNT Anixter Inc. 10% SENIOR NOTES DUE 2014 UNDERWRITING AGREEMENT dated March 6, 2009 Banc of America Securities LLC
EXHIBIT 1.1
$200,000,000 AGGREGATE PRINCIPAL AMOUNT
Anixter Inc.
10% SENIOR NOTES
DUE 2014
dated March 6, 2009
Banc of America Securities LLC
March 6, 2009
BANC OF AMERICA SECURITIES LLC
As Representative of the several Underwriters
c/o BANC OF AMERICA SECURITIES LLC
One Bryant Park
New York, NY 10036
As Representative of the several Underwriters
c/o BANC OF AMERICA SECURITIES LLC
One Bryant Park
New York, NY 10036
Ladies and Gentlemen:
Introductory. Anixter Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to the several underwriters named in Schedule A (the “Underwriters”) $200,000,000 in
aggregate principal amount of its 10% Senior Notes due 2014 (the “Notes”). Banc of America
Securities LLC (“BAS”) has agreed to act as representative of the several Underwriters (in such
capacity, the “Representative”) in connection with the offering and sale of the Notes. The Notes
will be guaranteed (the “Guarantee”) by Anixter International Inc., a Delaware corporation and
parent of the Company (the “Guarantor”). The Notes and the Guarantee are collectively referred to
as the “Securities”.
The Securities will be issued pursuant to the terms, and subject to the conditions, set forth
in the indenture dated as of September 9, 1996, as supplemented by the First Supplemental
Indenture, dated as of February 24, 2005 and by a Second Supplemental Indenture, dated as of March
11, 2009 (as supplemented, the “Indenture”), between the Company and The Bank of New York Mellon
Trust Company, N.A., as trustee (the “Trustee”), on the Closing Date (as defined herein). Certain
terms of the Securities will be established pursuant to an officer’s certificate dated as of March
11, 2009 pursuant to the terms of the Indenture.
The Company and the Guarantor hereby confirm their agreements with the Underwriters as
follows:
Section 1. Representations and Warranties of the Company.
The Company and the Guarantor each hereby jointly and severally represent and warrant to, and
covenant with, each Underwriter as follows:
(a) The Company and the Guarantor have prepared and filed with the Securities and
Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-
153607), which contains a base prospectus (the “Base Prospectus”) to be used in connection
with the public offering and sale of the Securities. Such registration statement, as
amended, including the financial statements, exhibits and schedules thereto at the time of
effectiveness under the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Securities Act”), including any required
information deemed to be a part thereof at the time of effectiveness pursuant
to Rule 430B under the Securities Act or the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange
Act”), is called the “Registration Statement”. Any registration statement filed by the
Company pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b)
Registration Statement”, and from and after the date and time of filing of the Rule 462(b)
Registration Statement the term “Registration Statement” shall include the Rule 462(b)
Registration Statement. Any preliminary prospectus supplement to the Base Prospectus that
describes the Securities and the offering hereby and is used prior to the filing of the
Final Prospectus is called, together with the Base Prospectus, a “preliminary prospectus”.
The term “Prospectus” shall mean the final prospectus supplement relating to the Securities,
together with the Base Prospectus, that is first filed pursuant to Rule 424(b) under the
Securities Act after the date and time that this Agreement is executed and delivered by the
parties hereto (the “Execution Time”) or, if no filing pursuant to Rule 424(b) under the
Securities Act is required, shall mean the form of final prospectus relating to the
Securities included in the Registration Statement at the effective date. Any reference
herein to the Registration Statement, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3. All references in this Agreement to the Registration Statement, the
Rule 462(b) Registration Statement, the Preliminary Prospectus, the Prospectus, or any
amendments or supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System
(“XXXXX”).
(b) Compliance with Registration and Exchange Act Requirements. The Company and the
Guarantor meet the requirements for use of Form S-3 under the Securities Act. The
Registration Statement has become effective under the Securities Act. The Company and the
Guarantor have complied to the Commission’s satisfaction with all requests of the Commission
for additional or supplemental information. No stop order suspending the effectiveness of
the Registration Statement is in effect, the Commission has not issued any order or notice
preventing or suspending the use of the Registration Statement, any preliminary prospectus
or the Prospectus and no proceedings for such purpose have been instituted or are pending
or, to the best knowledge of the Company or the Guarantor, are contemplated or threatened by
the Commission.
Each preliminary prospectus and the Prospectus when filed complied in all material
respects with the Securities Act. Each of the Registration Statement and any post-effective
amendment thereto, at the time it became effective and at the date hereof, complied and will
comply in all material respects with the Securities Act and 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 in order to make the statements therein not misleading. The Prospectus
(including any Prospectus wrapper), as amended or supplemented, as of its date, at the date
hereof, at the time of any filing pursuant to Rule 424(b) under the Securities Act and at
the Closing Date (as defined herein) 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. The
representations and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, based upon
and in conformity with written information
-2-
furnished to the Company by any Underwriter
through BAS expressly for use
therein, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 8(b) hereof. There is
no contract or other document required to be described in the Prospectus or to be filed as
an exhibit to the Registration Statement that has not been described or filed as required.
(c) The documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as applicable.
(d) Disclosure Package. The term “Disclosure Package” shall mean (i) the Base
Prospectus, including any preliminary prospectus supplement, if any, as amended or
supplemented, (ii) the Final Term Sheet (as defined herein), (iii) any other issuer free
writing prospectuses as defined in Rule 433 under the Securities Act (each, an “Issuer Free
Writing Prospectus”), if any, that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Disclosure Package and (iv) any other free writing
prospectus that the parties hereto shall hereafter expressly agree in writing to treat as
part of the Disclosure Package. As of 10:00 a.m., New York time, on the date of execution
and delivery of this Agreement (the “Applicable Time”), the Disclosure Package did not
contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through BAS expressly for use therein, it being
understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 8(b) hereof.
(e) Each of Company and Guarantor is a Well-Known Seasoned Issuer. (i) At the time of
filing the Registration Statement, (ii) at the time of the most recent amendment thereto for
the purposes of complying with Section 10(a)(3) of the Securities Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Section 13
or 15(d) of the Exchange Act or form of prospectus) and (iii) at any other time specified in
the Securities Act for determining whether each of the Company and the Guarantor is a “well
known season issuer” in connection with the offering of the Securities, each of the Company
and the Guarantor was and is a “well known seasoned issuer” as defined in Rule 405 of the
Securities Act. The Registration Statement is an “automatic shelf registration statement,”
as defined in Rule 405 of the Securities Act, that automatically became effective not more
than three years prior to the Execution Time. Neither the Company nor the Guarantor has
received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act
objecting to use of the automatic shelf registration statement form and neither the Company
nor the Guarantor has otherwise ceased to be eligible to use the automatic shelf
registration form.
(f) Neither Company nor Guarantor Ineligible Issuer. (i) At the time of filing the
Registration Statement and (ii) as of the date of the execution and delivery of this
Agreement (with such date being used as the determination date for purposes of this clause
(ii)), neither the Company nor the Guarantor was and is an Ineligible Issuer (as de-
-3-
fined in
Rule 405 under the Securities Act), without taking account of any determination
by the Commission pursuant to Rule 405 under the Securities Act that it is not
necessary that the Company or the Guarantor be considered an Ineligible Issuer.
(g) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the offering of Securities
under this Agreement or until any earlier date that the Company notified or notifies BAS as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, including any prospectus or prospectus supplement that is or becomes part of the
Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Company has promptly notified or will promptly notify BAS and
has promptly amended or supplemented or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The
foregoing two sentences do not apply to statements in or omissions from any Issuer Free
Writing Prospectus based upon and in conformity with written information furnished to the
Company by any Underwriter through BAS expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 8 hereof.
(h) Distribution of Offering Material By the Company or the Guarantor. Neither the
Company nor the Guarantor has distributed or will distribute, prior to the later of Closing
Date and the completion of the Underwriters’ distribution of the Securities, any offering
material in connection with the offering and sale of the Securities other than a preliminary
prospectus, the Prospectus, any Permitted Free Writing Prospectus (as defined herein), the
Final Term Sheet (as defined herein) or the Registration Statement.
(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 the Disclosure
Package, subsequent to the respective dates as of which information is given in the
Disclosure Package, (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, properties or operations whether or
not arising from transactions in the ordinary course of business, of the Company, the
Guarantor and their subsidiaries, considered as one entity (any such change is called a
“Material Adverse Change”); (ii) the Company, the Guarantor and their subsidiaries,
considered as one entity, have not incurred any material liability or obligation, indirect,
direct or contingent, nor entered into any material transaction or agreement; and (iii)
there has been no dividend or distribution of any kind declared, paid or made by the
Guarantor or, except for dividends paid to the Company, the Guarantor or other subsidiaries,
any of its subsidiaries on any class of capital stock or repurchase or redemption by the
Company, the Guarantor or any of their subsidiaries of any class of capital stock.
-4-
(k) Incorporation and Good Standing of the Company, the Guarantor and certain
Subsidiaries. Each of the Company, the Guarantor and each “significant subsidiary” of the
Guarantor (as such term is defined in Rule 1-02 of Regulation S-X under the 1933 Act) (each,
including the Company, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly
incorporated and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has corporate power and authority to own or lease, as
the case may be, and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus and, in the case of the Company and the Guarantor, to
enter into and perform its obligations under this Agreement. Each of the Company, the
Guarantor and each 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 effect on
the condition, financial or otherwise, or on the earnings, business, properties or
operations, whether or not arising from transactions in the ordinary course of business, of
the Company, the Guarantor and their subsidiaries, considered as one entity (a “Material
Adverse Effect”). All of the issued and outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable
and are owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim. All of the issued and
outstanding shares of capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and are owned by the Guarantor, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance
or claim.
(l) Capitalization and Other Capital Stock Matters. The authorized, issued and
outstanding capital stock of the Guarantor is as set forth in the Disclosure Package and the
Prospectus (other than for subsequent issuances, if any, pursuant to employee benefit plans
described in the Disclosure Package and the Prospectus or upon exercise of outstanding
options, warrants or convertible notes described in the Disclosure Package and the
Prospectus, as the case may be). All of the issued and outstanding shares of Common Stock
of the Guarantor have been duly authorized and validly issued, are fully paid and
nonassessable and have been issued in compliance with federal and state securities laws.
None of the outstanding shares of Common Stock of the Guarantor were issued in violation of
any preemptive rights, rights of first refusal or other similar rights to subscribe for or
purchase securities of the Guarantor. 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 Guarantor, the Company or any of its subsidiaries other than those accurately described
in the Disclosure Package and the Prospectus. The description of the Company’s and the
Guarantor’s stock option, stock bonus and other stock plans or arrangements, and the options
or other rights granted thereunder, set forth or incorporated by reference in each of the
Disclosure Package and the Prospectus accurately and fairly presents the information
required to be shown with respect to such plans, arrangements, options and rights.
-5-
(m) The Notes and Guarantee. The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been duly authorized for
issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Date,
will have been duly executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment of the purchase price therefor, will
constitute valid and binding agreements of the Company, enforceable in accordance with their
terms, except as the enforcement thereof 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 and will be entitled to the
benefits of the Indenture. The Guarantee of the Notes is in the form contemplated by the
Indenture, has been duly authorized for issuance and sale pursuant to this Agreement and the
Indenture and, at the Closing Date, will have been duly executed by the Guarantor and, when
the Notes have been authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor, will constitute a valid and binding
agreement of the Guarantor, enforceable in accordance with its terms, except as the
enforcement thereof 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 and will be entitled to the benefits of the Indenture.
(n) The Indenture. The Indenture has been duly authorized by the Company and the
Guarantor and, at the Closing Date, will have been duly executed and delivered by the
Company and the Guarantor and will constitute a valid and binding agreement of the Company
and the Guarantor, enforceable in accordance with its terms, except as the enforcement
thereof 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.
(o) Conformance of Description of Notes. The Securities and the Indenture will conform
in all material respects to the descriptions thereof in the Disclosure Package and the
Prospectus.
(p) Certain Regulations. None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the Securities)
will violate or result in a violation of Section 7 of the Exchange Act, or any regulation
promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board
of Governors of the Federal Reserve System.
(q) Non-Contravention of Existing Instruments. Neither the Company, the Guarantor nor
any Subsidiary is (i) in violation or in default (or, with the giving of notice or lapse of
time, would be in default) under (“Default”) its charter or by-laws, (ii) in Default under
any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise,
lease or other agreement, obligation, condition, covenant or instrument to which the
Company, the Guarantor or any of the Subsidiaries is a party or by which it may be bound, or
to which any of the property or assets of the Company, the Guarantor or any Subsidiary is
subject (each, an “Existing Instrument”), or (iii) in violation of any
-6-
statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company, the Guarantor or such Subsidiary or any of its properties, as
applicable, except with respect to clauses (ii) and (iii) only, for such Defaults or
violations as would not, individually or in the aggregate, have a Material Adverse Effect.
The Company’s and the Guarantor’s execution, delivery and performance of this Agreement, the
Indenture and the Securities and consummation of the transactions contemplated hereby and
thereby (including, without limitation, the issuance of the Securities), by the Disclosure
Package and by the Prospectus (i) have been duly authorized by all necessary corporate
action and will not result in any Default under the charter or by-laws of the Company, the
Guarantor 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, the Guarantor or any Subsidiaries pursuant to,
or require the consent of any other party to, any Existing Instrument, and (iii) will not
result in any violation of any statute, law, rule, regulation, judgment, order or decree
applicable to the Company, the Guarantor or any Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company, the Guarantor or any Subsidiaries or any of its or their properties.
(r) No Further Authorizations or Approvals Required. 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 or the
Guarantor’s execution, delivery and performance of this Agreement, the Indenture and the
Securities and consummation of the transactions contemplated hereby and thereby, by the
Disclosure Package 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, or as may be required
under applicable state securities or blue sky laws and from the FINRA.
(s) No Material Actions or Proceedings. There are no legal or governmental actions,
suits or proceedings pending or, to the best of the Company’s or the Guarantor‘s knowledge,
threatened (i) against or affecting the Company, the Guarantor or any Subsidiaries or
(ii) which has as the subject thereof any officer or director of the Company, the Guarantors
or any Subsidiaries in his or her role as an officer or director thereof, or property owned
or leased by the Company, the Guarantor or any Subsidiaries, and, in each case, which if
determined adversely, would reasonably be expected to have a Material Adverse Effect or
adversely affect the consummation of the transactions contemplated by this Agreement.
(t) Exchange Act Compliance. The Guarantor is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or 15(d) of the Exchange
Act.
(u) Independent Accountants. Xxxxx & 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
-7-
a part of the
Registration Statement and included in the Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to the Company
and the Guarantor as required by the Securities Act and the Exchange Act and the
applicable published rules and regulations thereunder.
(v) Preparation of Financial Statements. The financial statements filed with the
Commission as a part of or incorporated by reference in the Registration Statement and
included or incorporated by reference in the Disclosure Package and the Prospectus, together
with the related schedules and notes, present fairly the consolidated financial position of
the Guarantor and its consolidated subsidiaries as of and at the dates indicated and the
results of their operations and cash flows for the periods specified. The supporting
schedules included or incorporated by reference in the Registration Statement present fairly
the information required to be stated therein. Such financial statements and supporting
schedules comply as to form with the applicable accounting requirements of the Securities
Act and 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 or incorporated by reference
in the Registration Statement. The financial data set forth in the preliminary prospectus
and the Prospectus under the captions “Summary Consolidated Financial Data of Anixter
International” 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 Guarantor’s ratios of earnings to fixed charges set forth in each of the
Preliminary Prospectus and the Prospectus under the caption “Ratios of Earnings to Fixed
Charges” and in Exhibit 12 to the Registration Statement have been calculated in compliance
in all material respects with the requirements of Item 503(d) of Regulation S-K under the
Securities Act.
(w) The Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(x) Intellectual Property Rights. The Company, the Guarantor and the Subsidiaries own,
possess, license or have other rights to use, on reasonable terms, all patents, patent
applications, trade and service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual
property (collectively, the “Intellectual Property”) necessary for the conduct of the
Company’s business as now conducted or as proposed in each of the Disclosure Package and the
Prospectus to be conducted. Except as set forth in the Disclosure Package and the
Prospectus, neither the Company, the Guarantor nor any of the Subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect the interest of the
Company, the Guarantor or any of the Subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
-8-
(y) All Necessary Permits, etc. The Company, the Guarantor and each Subsidiary possess
such valid and current licenses, certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses, and neither the Company nor the Guarantor
nor any Subsidiary has received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such license, certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, could have a Material Adverse Effect.
(z) Title to Properties. The Company, the Guarantor and the Subsidiaries have good and
marketable title to all the properties and assets reflected as owned in the financial
statements referred to in Section 1(v) above (or elsewhere in the Disclosure Package and the
Prospectus), in each case free and clear of any security interests, mortgages, liens,
encumbrances, equities, claims and other defects, except (i) as otherwise stated in the
Registration Statement or the Prospectus or (ii) those which do not, singly or in the
aggregate, 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, the
Guarantor or any of the Subsidiaries. The real property, improvements, equipment and
personal property held under lease by the Company, the Guarantor 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, the Guarantor or such
Subsidiary.
(aa) Tax Law Compliance. The Company, the Guarantor and their consolidated
subsidiaries have filed all necessary federal, state, local and foreign income and franchise
tax returns in a timely manner 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, except for any taxes, assessments, fines or penalties as may be being contested
in good faith and by appropriate proceedings. The Company and the Guarantor have made
appropriate provisions in the applicable financial statements referred to in Section 1 (v)
above in respect of all federal, state, local and foreign income and franchise taxes for all
current or prior periods as to which the tax liability of the Company, the Guarantor or any
of their consolidated subsidiaries has not been finally determined.
(bb) “Investment Company”. The Company and the Guarantor have been advised of the
rules and requirements under the Investment Company Act of 1940, as amended (the “Investment
Company Act”). Neither the Company nor the Guarantor is, and after receipt of payment for
the Securities and the application of the proceeds thereof as contemplated under the caption
“Use of Proceeds” in each of the preliminary prospectus and the Prospectus will 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.
(cc) Insurance. Each of the Company, the Guarantor and their subsidiaries are insured
under policies in such amounts and with such deductibles and covering such risks
-9-
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,
the Guarantor and their subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes. All policies of insurance and fidelity or surety bonds insuring
the Company, the Guarantor or any of their subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and effect; the Company, the
Guarantor and their subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the Company, the Guarantor
or any of their subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause, except for
defenses under a reservations of rights clause where the failure to have coverage would not
have a Material Adverse Effect; and neither the Company nor the Guarantor nor any such
subsidiary has been refused any insurance coverage sought or applied for.
(dd) No Restrictions on Dividends or Other Distributions. No domestic subsidiary of
the Company, other than Anixter Receivables Corporation, is currently contractually
prohibited, directly or indirectly, from paying any dividends or other distributions to the
Company, from making any other distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s property or assets to the Company or any other
subsidiary of the Company or Guarantor, except as described in or contemplated by the
Disclosure Package and the Prospectus.
(ee) No Price Stabilization or Manipulation. Neither the Company nor the Guarantor has
taken and will take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the price of any
security of the Company or the Guarantor to facilitate the sale or resale of the Securities.
(ff) Related Party Transactions. There are no business relationships or related-party
transactions involving the Company, the Guarantor or any subsidiary or any other person
required to be described in the preliminary prospectus or the Prospectus that have not been
described as required.
(gg) Internal Controls and Procedures. The Guarantor maintains (i) effective internal
control over financial reporting as defined in Rule 13a-15 under the Securities Exchange Act
of 1934, as amended, and (ii) a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with management’s
general or specific authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(hh) No Material Weakness in Internal Controls. Since the end of the Guarantor’s most
recent audited fiscal year, there has been (i) no material weakness in the
-10-
Guarantor’s
internal control over financial reporting (whether or not remediated) and (ii) no change in
the Guarantor’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Guarantor’s internal control
over financial reporting.
(ii) Disclosure Controls. The Guarantor maintains an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) under the Exchange Act) that is
designed to ensure that information required to be disclosed by the Guarantor in reports
that it files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated and
communicated to the Guarantor’s management as appropriate to allow timely decisions
regarding required disclosure. Each of the Company, the Guarantor and their subsidiaries
have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15(e) under the Exchange Act.
(jj) Stock Options. With respect to the stock options (the “Stock Options”) granted
pursuant to the stock-based compensation plans of the Company, the Guarantor and their
subsidiaries (the “Company Stock Plans”), (i) each Stock Option designated by the Company,
the Guarantor or the relevant subsidiary of the Company or Guarantor at the time of grant as
an “incentive stock option” under Section 422 of the Internal Revenue Code of 1986, as
amended (the “Code”), so qualifies, (ii) each grant of a Stock Option was duly authorized no
later than the date on which the grant of such Stock Option was by its terms to be effective
(the “Grant Date”) by all necessary corporate action, including, as applicable, approval by
the board of directors of the Company, the Guarantor or the relevant subsidiary of the
Company or Guarantor (or a duly constituted and authorized committee thereof) and any
required stockholder approval by the necessary number of votes or written consents, and the
award agreement governing such grant (if any) was duly executed and delivered by the
Guarantor, (iii) each such grant was made in accordance with the terms of the Company Stock
Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements,
including the rules of the New York Stock Exchange and any other exchange on which the
securities of the Company, the Guarantor or the relevant subsidiary of the Company or
Guarantor are traded, (iv) the per share exercise price of each Stock Option was equal to or
greater than the fair market value of a share of Common Stock on the applicable Grant Date
and (v) each such grant was properly accounted for in accordance with GAAP in the
consolidated financial statements (including the related notes) of the Company and disclosed
in the Company’s filings with the Commission in accordance with the Exchange Act and all
other applicable laws. Neither the Company nor the Guarantor nor any of its subsidiaries
has knowingly granted, and there is no and has been no policy or practice of the Company,
the Guarantor or any of their subsidiaries of granting, Stock Options prior to, or otherwise
coordinating the grant of Stock Options with, the release or other public announcement of
material information regarding the Company, the Guarantor or their subsidiaries or their
results of operations or prospects.
(kk) No Unlawful Contributions or Other Payments. Neither the Company nor the
Guarantor nor any of their subsidiaries nor, to the knowledge of the Company or the
Guarantor, any director, officer, agent, employee or affiliate of the Company, the Guarantor
or any of their subsidiaries is aware of or has taken any action, directly or indirectly,
-11-
that would result in a violation by such Persons of the FCPA, including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA)
or any foreign political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA, and the Company, the Guarantor, its subsidiaries and,
to the knowledge of the Company and the Guarantor, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(ll) No Conflict with Money Laundering Laws. The operations of the Company, the
Guarantor and their subsidiaries are and have been conducted at all times in material
compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company or the Guarantor,
threatened.
(mm) No Conflict with OFAC Laws. Except as disclosed in the Disclosure Package and the
Prospectus as may occur, neither the Company nor the Guarantor nor any of their subsidiaries
nor, to the knowledge of the Company or the Guarantor, any director, officer, agent,
employee or affiliate of the Company, Guarantor or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds, to
any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(nn) Compliance with Environmental Laws. Except as otherwise disclosed in the
Disclosure Package and the Prospectus, except as would not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect (i) neither the Company, the
Guarantor nor any of the Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law and
any judicial or administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release, in any form, or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances, asbestos, asbestos containing
-12-
materials, polychlorinated biphenyls, hazardous substances, petroleum and petroleum products
(collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (ii) the Company, the Guarantor and the Subsidiaries
have all permits, authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (iii) there are no pending or, to
the best knowledge of the Company, the Guarantor and the Subsidiaries after reasonable
investigation, threatened actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation or potential responsibility, investigation or proceedings
relating to any Environmental Law against the Company, Guarantor or any of the Subsidiaries,
(iv) there are no events, conditions or circumstances that would reasonably be expected to
result in any liability of the Company, the Guarantor or any of the Subsidiaries relating to
any Hazardous Materials or the violation of any Environmental Laws, (v) neither the Company,
the Guarantor nor any of the Subsidiaries is conducting or financing, in whole or in part,
any investigation, response or other corrective action pursuant to any Environmental Law at
any location and (vi) neither the Company, the Guarantor nor any of the Subsidiaries is a
party to any order, judgment, decree or agreement, which imposes any obligation on any of
them under any Environmental Law.
(oo) ERISA Compliance. None of the following events has occurred or exists: (i) a
failure to fulfill the obligations, if any, under the minimum funding standards of Section
302 of the United States Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and the regulations and published interpretations thereunder with respect to a
Plan, determined without regard to any waiver of such obligations or extension of any
amortization period; (ii) an audit or investigation by the Internal Revenue Service, the
U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal or
state governmental agency or any foreign regulatory agency with respect to the employment or
compensation of employees by any member of the Company or the Guarantor that could have a
Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation
of law or applicable qualification standards, with respect to the employment or compensation
of employees by any member of the Company or the Guarantor that could have a Material
Adverse Effect. None of the following events has occurred or is reasonably likely to occur:
(i) a material increase in the aggregate amount of contributions required to be made to all
Plans in the current fiscal year of the Company and the Guarantor compared to the amount of
such contributions made in the Company’s and the Guarantor’s most recently completed fiscal
year; (ii) a material increase in the Company’s or the Guarantor’s “accumulated
post-retirement benefit obligations” (within the meaning of Statement of Financial
Accounting Standards 106) compared to the amount of such obligations in the Company’s or the
Guarantor’s most recently completed fiscal year; (iii) any event or condition giving rise to
a liability under Title IV of ERISA that could have a Material Adverse Effect; or (iv) the
filing of a claim by one or more employees or former employees of the Company or the
Guarantor related to their employment that could have a Material Adverse Effect. For
purposes of this paragraph, the term “Plan” means a plan (within the meaning of Section 3(3)
of ERISA) subject to Title IV of ERISA with respect to which any member of the Company or
the Guarantor may have any liability.
(pp) Brokers. Except as otherwise disclosed in the Disclosure Package and the
Prospectus, there is no broker, finder or other party that is entitled to receive from the
-13-
Company any brokerage or finder’s fee or other fee or commission as a result of any
transactions contemplated by this Agreement.
(qq) No Outstanding Loans or Other Indebtedness. There are no outstanding loans,
advances (except normal advances for business expenses in the ordinary course of business)
or guarantees or indebtedness by the Company or the Guarantor to or for the benefit of any
of the executive officers or directors of the Company or the Guarantor or any of the members
of any of them, except as disclosed in the Disclosure Package and the Prospectus.
(rr) Xxxxxxxx-Xxxxx Compliance. There is and has been no failure on the part of the
Company or the Guarantor and any of the Company’s or the Guarantor’s respective directors or
officers, in their capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection therewith (the
“Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and 906
related to certifications.
(ss) Ratings. Except as otherwise disclosed in the Disclosure Package, no “nationally
recognized statistical rating organization” as such term is defined for purposes of Rule
436(g)(2) under the Securities Act (i) has imposed (or has informed the Company that it is
considering imposing) any condition (financial or otherwise) on the Company’s or the
Guarantor’s retaining any rating assigned to the Company or the Guarantor, any securities of
the Company or the Guarantor or (ii) has indicated to the Company or Guarantor that it is
considering (a) the downgrading, suspension, or withdrawal of, or any review for a possible
change that does not indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of the Company or the Guarantor or
any securities of the Company or the Guarantor.
(tt) Lending Relationship. Except as disclosed in the Disclosure Package and the
Prospectus, neither the Company nor the Guarantor (i) have any material lending or other
relationship with any bank or lending affiliate of any Underwriter and (ii) intend to use
any of the proceeds from the sale of the Securities hereunder to repay any outstanding debt
owed to any affiliate of any Underwriter (excluding any commercial paper conduit sponsored
by any affiliate of any Underwriter).
(uu) Statistical and Market Related Data. Nothing has come to the attention of the
Company or the Guarantor that has caused the Company or the Guarantor to believe that the
statistical and market-related data included in the Disclosure Package and the Prospectus is
not based on or derived from sources that are reliable and accurate in all material
respects.
(vv) Solvency. Each of the Company and the Guarantor is, and immediately after the Closing Date will be, Solvent.
As used herein, the term “Solvent” means, with respect to any person on a particular date, that on such date (i) the fair
market value of the assets of such person is greater than the total amount of liabilities (including contingent liabilities) of
such person, (ii) the present fair salable value of the assets of such person is greater than the amount that will be required to pay the
probable liabilities of such person on its debts as they become absolute and matured, (iii) such person is able to realize upon
-14-
its assets and pay
its debts and other liabilities, including contingent
obligations, as they mature and (iv) such person does not have unreasonably small capital.
Any certificate signed by an officer of the Company or the Guarantor and delivered to the
Representative or to counsel for the Underwriters shall be deemed to be a representation and
warranty by the Company and the Guarantor to each Underwriter as to the matters set forth therein.
Section 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to the several Underwriters the
Securities upon the terms herein set forth. On the basis of the representations, warranties and
agreements herein contained, and upon the terms but subject to the conditions herein set forth, the
Underwriters agree, severally and not jointly, to purchase from the Company the respective
aggregate principal amount of Securities set forth opposite their names on Schedule A. The purchase
price per Note to be paid by the several Underwriters to the Company shall be equal to 90.625% of
the aggregate principal amount thereof.
(b) The Closing Date. Delivery of the Securities to be purchased by the Underwriters and
payment therefor shall be made at the offices of Xxxxxx Xxxxxx LLP, 0000 Xxxxx Xxxxx, Xxxxxxx, XX
00000 (or such other place as may be agreed to by the Company and BAS) at 9:00 a.m., New York time,
on March 11, 2009, or such other time and date not later than 1:30 p.m., New York time, on March
11, 2009 as BAS 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 Representative hereby advises the Company that the
Underwriters intend to offer for sale to the public, as described in the Prospectus, their
respective portions of the Securities as soon after this Agreement has been executed as BAS, 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 Representative has been authorized, for its own account and the
accounts of the several Underwriters, to accept delivery of and receipt for, and make payment of
the purchase price for, the Securities the Underwriters have agreed to purchase. BAS, individually
and not as the Representative of the Underwriters, may (but shall not be obligated to) make payment
for any Securities to be purchased by any Underwriter whose funds shall not have been received by
the Representative by the Closing Date for the account of such Underwriter, but any such payment
shall not relieve such Underwriter from any of its obligations under this Agreement.
(e) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to the
Representative for the accounts of the several Underwriters, the Securities (guaranteed by the
Guarantor) the Underwriters have agreed to purchase on the Closing Date, against the irrevocable
release of a wire transfer of immediately available funds for the amount of the purchase price
therefor. Delivery of the Securities shall be made through the facilities of The Depository Trust
Company unless BAS shall otherwise instruct. Time shall be of the essence, and delivery
-15-
at the
time and place specified in this Agreement is a further condition to the obligations of the
Underwriters.
(f) Delivery of Prospectus to the Underwriters. The Company shall deliver or cause to be
delivered, copies of the Prospectus in such quantities and at such places as BAS shall request.
Section 3. Covenants of the Company and the Guarantor.
The Company and the Guarantor covenant and agree with each Underwriter as follows:
(a) BAS’ Review of Proposed Amendments and Supplements. During the period beginning on
the Applicable Time and ending on the later of the Closing Date or such date, as in the
opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be
delivered in connection with sales by an Underwriter or dealer, including in circumstances
where such requirement may be satisfied pursuant to Rule 172 under the Securities Act (the
“Prospectus Delivery Period”), prior to amending or supplementing the Registration
Statement, the Disclosure Package or the Prospectus, the Company shall furnish to BAS for
review a copy of each such proposed amendment or supplement, and neither the Company nor the
Guarantor shall file or use any such proposed amendment or supplement to which BAS
reasonably objects.
(b) Securities Act Compliance. After the date of this Agreement, the Company shall
promptly advise BAS 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 of any order or notice preventing or suspending the use of the
Registration Statement, 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.
The Company and the Guarantor shall use their best efforts to prevent the issuance of any
such stop order or notice of prevention or suspension of such use. If the Commission shall
enter any such stop order or issue any such notice at any time, the Company will use its
best efforts to obtain the lifting or reversal of such order or notice at the earliest
possible moment, or, subject to Section 3(a), will file an amendment to the Registration
Statement or will file a new registration statement and use its best efforts to have such
amendment or new registration statement declared effective as soon as practicable.
Additionally, each of the Company and the Guarantor agrees that it shall comply with the
provisions of Rules 424(b) and 430B, as applicable, under the Securities Act, including with
respect to the timely filing of documents thereunder, and will use its
reasonable efforts to confirm that any filings made by the Company under such
Rule 424(b) under the Securities Act were received in a timely manner by the Commission.
-16-
(c) Amendments and Supplements to the Registration Statement, Disclosure Package and
Prospectus and Other Securities Act Matters. If, during the Prospectus Delivery Period, any
event or development shall occur or condition exist as a result of which the Disclosure
Package or the Prospectus as then amended or supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary in order to make the
statements therein in the light of the circumstances under which they were made or then
prevailing, as the case may be, not misleading, or if it shall be necessary to amend or
supplement the Disclosure Package or the Prospectus, or to file under the Exchange Act any
document incorporated by reference in the Disclosure Package or the Prospectus, in order to
make the statements therein, in the light of the circumstances under which they were made or
then prevailing, as the case may be, not misleading, or if in the opinion of BAS it is
otherwise necessary or advisable to amend or supplement the Registration Statement, the
Disclosure Package or the Prospectus, or to file under the Exchange Act any document
incorporated by reference in the Disclosure Package or the Prospectus, or to file a new
registration statement containing the Prospectus, in order to comply with law, including in
connection with the delivery of the Prospectus, each of the Company and the Guarantor agrees
to (i) notify BAS of any such event or condition and (ii) promptly prepare (subject to
Sections 3(a) and 3(e) hereof), file with the Commission (and use its best efforts to have
any amendment to the Registration Statement or any new registration statement to be declared
effective) and furnish at its own expense to the Underwriters and to dealers, amendments or
supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any
new registration statement, necessary in order to make the statements in the Disclosure
Package or the Prospectus as so amended or supplemented, in the light of the circumstances
under which they were made or then prevailing, as the case may be, not misleading or so that
the Registration Statement, the Disclosure Package or the Prospectus, as amended or
supplemented, will comply with law.
(d) Final Term Sheet. The Company will prepare a final term sheet, containing solely a
description of final terms of the Securities and the offering thereof, in the form approved
by BAS and attached as Schedule B hereto (the “Final Term Sheet”) and will file such Final
Term Sheet pursuant to Rule 433(d) within the time required by such rule.
(e) Permitted Free Writing Prospectuses. Each of the Company and the Guarantor
represents that it has not made, and agrees that, unless it obtains the prior written
consent of BAS, it will not make, any offer relating to the Securities that constitutes or
would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would
constitute a “free writing prospectus” (as defined in Rule 405 under the Securities Act) or
a portion thereof required to be filed by the Company and the Guarantor with the Commission
or retained by the Company and the Guarantor under Rule 433 under the Securities Act;
provided that the prior written consent of BAS hereto shall be deemed to have been given in
respect of the Final Term Sheet. Any such free writing prospectus consented to by BAS is
hereinafter referred to as a “Permitted Free Writing Prospectus”. Each of the Company and
the Guarantor agrees that (i) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has
complied and will comply, as the case may be, with the requirements of
Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record
keeping. The Company and the Guarantor consent to the use by any Underwriter
-17-
of a free
writing prospectus that (a) is not an “issuer free writing prospectus” as defined in
Rule 433, and (b) contains only (i) information describing the preliminary terms of the
Securities or their offering, (ii) information that describes the final terms of the
Securities or their offering and that was included in the Final Term Sheet of the Company
contemplated in Section 1(d)(ii) as previously filed with the Commission or (iii)
information permitted under Rule 134 under the Securities Act; provided that each
Underwriter severally covenants with the Company not to take any action without the
Company’s consent which consent shall be confirmed in writing that would result in the
Company being required to file with the Commission under Rule 433(d) under the Securities
Act a free writing prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
(f) Copies of any Amendments and Supplements to the Prospectus. The Company agrees to
furnish the Representative, 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) and the Disclosure Package as the
Representative may request.
(g) Copies of the Registration Statement and the Prospectus. The Company will furnish
to the Representative and counsel for the Underwriters conformed copies of the Registration
Statement (including exhibits thereto) as originally filed and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many copies of each
preliminary prospectus, the Prospectus and any supplement thereto and the Disclosure Package
as the Representative may reasonably request.
(h) Blue Sky Compliance. The Company and the Guarantor shall cooperate with the
Representative and counsel for the Underwriters 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 or other foreign laws of those jurisdictions
designated by the Representative, 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. Neither the Company nor the Guarantor 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, other than those arising out of the
offering or sale of the Securities in any jurisdiction where it is not now so subject. The
Company and the Guarantor will advise the Representative 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, and in the event of the issuance of any order suspending such
qualification, registration or exemption, each of the Company and the Guarantor shall use
its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(i) Use of Proceeds. The Company shall apply the net proceeds from the sale of the
Securities sold by it in the manner described under the caption “Use of Proceeds” in the
Disclosure Package and the Prospectus.
(j) Earnings Statement. The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to its security
-18-
holders
as soon as practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(k) Periodic Reporting Obligations. During the Prospectus Delivery Period the Company
and the Guarantor 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 and Rule 158
under the Securities Act.
(l) Agreement Not to Offer or Sell Additional Securities. During the period commencing
on the date hereof and ending on the 90th day following the date of the Prospectus, neither
the Company nor the Guarantor will, without the prior written consent of BAS (which consent
may be withheld at the sole discretion of BAS), directly or indirectly, sell, offer,
contract or grant any option to sell, pledge, transfer or establish an open “put equivalent
position” or liquidate or decrease a “call equivalent position” within the meaning of Rule
16a-1(h) under the Exchange Act, or otherwise dispose of or transfer (or enter into any
transaction that is designed to, or might reasonably be expected to, result in the
disposition of), or announce the offering of, or file any registration statement under the
Securities Act in respect of, any debt securities of the Company, the Guarantor or any
Subsidiary or securities exchangeable for or convertible into debt securities of the
Company, the Guarantor or any Subsidiary (other than contemplated by this Agreement).
(m) Compliance with Sarbanes Oxley Act. The Company and the Guarantor will comply with
all applicable securities and other laws, rules and regulations, including, without
limitation, the Sarbanes Oxley Act, and use its best efforts to cause the Company’s and the
Guarantor’s respective directors and officers, in their capacities as such, to comply with
such laws, rules and regulations, including, without limitation, the provisions of the
Sarbanes Oxley Act.
(n) Filing Fees. The Company agrees to pay the required Commission filing fees
relating to the Securities within the time required by Rule 456(b)(1) of the Securities Act
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) of the Securities Act.
(o) Future Reports to the Representative. During the period of two years hereafter the
Company will furnish to the Representative (i) to the extent not available on the
Commission’s XXXXX filing system, as soon as practicable after the end of each fiscal year,
copies of the Annual Report of the Guarantor containing the balance sheet of the Guarantor
as of the close of such fiscal year and statements of income, stockholders’ equity and cash
flows for the year then ended and the opinion thereon of the Guarantor’s independent public
or certified public accountants; (ii) to the extent not available on the Commission’s XXXXX
filing system, as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form
8-K or other report filed by the Guarantor with the Commission, the NASD or any securities
exchange; and (iii) as soon as available, copies of any publicly available report or
communication of the Company or the Guarantor mailed generally to holders of its capital
stock.
(p) Investment Limitation. The Company shall not invest or otherwise use the proceeds
received by the Company from its sale of the Securities in such a manner as
-19-
would require
the Company, the Guarantor or any of their subsidiaries to register as an investment company
under the Investment Company Act.
(q) No Manipulation of Price. Neither the Company nor the Guarantor will take,
directly or indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, under the Exchange Act or otherwise, the
stabilization or manipulation of the price of any securities of the Company or the Guarantor
to facilitate the sale or resale of the Securities.
(r) DTC. The Company will cooperate with the Representative and use its best efforts
to permit the Securities to be eligible for clearance and settlement through The Depository
Trust Company.
Section 4. Payment of Expenses.
The Company and the Guarantor, 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 necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Securities to the Underwriters, (iii) all fees and expenses of the Company’s and
the Guarantor’s counsel, independent public or certified public accountants and other advisors,
(iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of Registration Statement (including financial statements, exhibits, schedules,
consents and certificates of experts), each Issuer Free Writing Prospectus, each preliminary
prospectus and the Prospectus, and all amendments and supplements thereto, and the mailing and
delivering of copies thereof to the Underwriters and dealers, this Agreement, the Indenture and the
Notes and Guarantee, (v) all filing fees, attorneys’ fees and expenses incurred by the Company, the
Guarantor or the Underwriters 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 securities laws of the several states of the United States, the provinces of Canada or
other jurisdictions designated by the Underwriters (including, without limitation, the cost of
preparing, printing and mailing preliminary and final blue sky or legal investment memoranda), (vi)
the fees and expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, (vii) any fees payable in connection
with the rating of the Securities with the ratings agencies, (viii) any filing fees incident to,
and any reasonable fees and disbursements of counsel to the Underwriters in connection with the
review by the FINRA, if any, of the terms of the sale of the Securities, (ix) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company and the Guarantor in connection
with approval of the Securities by the DTC for “book-entry” transfer, (x) all expenses incident to
the “road show” for the offering of the Securities, including the cost of any chartered airplane or
other transportation, (xi) all other fees, costs and expenses referred to in Item 14 of Part II of
the Registration Statement, and (xii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in this Section 4. It
is understood, however, that, except as provided in this Section 4, Section 6, Section 8 and
Section 9 hereof, the Underwriters will pay all of their own costs and expenses, including the fees
and expenses of their counsel.
-20-
Section 5. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the Securities as provided
herein on the Closing Date and shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Guarantor set forth in Section 1 hereof as of the
date hereof and as of the Closing Date as though then made and, to the accuracy of the statements
of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the
timely performance by the Company and the Guarantor of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Accountants’ Comfort Letter. On the date hereof, the Representative shall have
received from Ernst & Young LLP, independent public accountants for the Company and the
Guarantor, a letter dated the date hereof addressed to the Underwriters, in form and
substance satisfactory to the Representative.
(b) Compliance with Registration Requirements; No Stop Order. For the period from and
after effectiveness of this Agreement and prior to the Closing Date:
(i) the Company shall have filed the Prospectus with the Commission (including
the information required by Rule 430B under the Securities Act) in the manner and
within the time period required by Rule 424(b) under the Securities Act; or the
Company shall have filed a post-effective amendment to the Registration Statement
containing the information required by such Rule 430B under the Securities Act, and
such post-effective amendment shall have become effective;
(ii) all material required to be filed by the Company pursuant to Rule 433(d)
under the Securities Act, including the Final Term Sheet, shall have been filed with
the Commission within the applicable time periods prescribed for such filings under
such Rule 433 under the Securities Act; and
(iii) 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 threatened by the
Commission; and the Company shall not have received from the Commission any notice
pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic
shelf registration statement form.
(c) No Material Adverse Change or Ratings Agency Change. For the period from and after
the date of this Agreement and prior to the Closing Date:
(i) in the judgment of BAS there shall not have occurred any Material Adverse
Change;
(ii) there shall not have been any change or decrease specified in the letter
or letters referred to in paragraph (a) of this Section 5 which is, in the sole
judgment of BAS, so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Disclosure Package and the Prospectus; and
-21-
(iii) 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, the Guarantor 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 and Guarantor. On the Closing Date the
Representative shall have received favorable opinions of Xxxxxx Xxxxxx LLP, counsel for the
Company and the Guarantor and Xxxx X. Xxx, General Counsel to the Company and the Guarantor,
each dated as of such Closing Date, the forms of which are attached as Exhibit A and Exhibit
B, respectively.
(e) Opinion of Counsel for the Underwriters. On the Closing Date the Representative
shall have received the favorable opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP counsel for the
Underwriters, dated as of such Closing Date, in form and substance reasonably satisfactory
to, and addressed to, the Representative, and the Company and the Guarantor shall have
furnished to such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(f) Officers’ Certificate. On the Closing Date the Representative shall have received
a written certificate executed by the Chairman of the Board, Chief Executive Officer or
President of the Company and the Guarantor and the Chief Financial Officer or Chief
Accounting Officer of the Company and the Guarantor, dated as of such Closing Date to the
effect that the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and any amendment or supplement thereto, any Issuer Free Writing
Prospectus and any amendment or supplement thereto and this Agreement, to the effect set
forth in subsections (b)(iii) and (c)(iii) 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 and warranties of the Company and the Guarantor set
forth in Section 1 of this Agreement are true and correct on and as of such Closing
Date with the same force and effect as though expressly made on and as of such
Closing Date; and
(iii) each of the Company and the Guarantor has complied with all the
agreements hereunder and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date.
(g) Bring-down Comfort Letter. On the Closing Date, the Representative shall have
received from Ernst & Young LLP, independent public accountants for the Company and the
Guarantor, a letter dated such date, in form and substance satisfactory to the
Representative, 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 such Closing Date.
-22-
(h) Securities Eligible for DTC. On the Closing Date, the Securities shall be eligible
for clearance and settlement through the DTC.
(i) The Securities. The Securities and the Indenture shall be executed by the Company
and the Guarantor in substantially the form previously delivered to you.
(j) Additional Documents. On or before the Closing Date the Representative and counsel
for the Underwriters 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.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by BAS 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, Section 9 and Section 14 shall at all
times be effective and shall survive such termination.
Section 6. Reimbursement of Underwriters’ Expenses.
If this Agreement is terminated pursuant to Section 5, Section 10 or clauses (i) or (iv) of
Section 11 or if the sale to the Underwriters of the Securities on the Closing Date is not
consummated because of any refusal, inability or failure on the part of the Company or the
Guarantor to perform any agreement herein or to comply with any provision hereof, the Company and
the Guarantor, jointly and severally, agree to reimburse the Representative and the other
Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves)
that have not defaulted under Section 10, severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representative and the Underwriters in connection
with the proposed purchase and the offering and sale of the Securities, including but not limited
to 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 execution by the parties hereto.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company and the Guarantor, jointly and
severally, agree to indemnify and hold harmless each Underwriter, its directors, officers,
employees and agents, and each person, if any, who controls any Underwriter within the meaning of
the Securities Act or the Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Underwriter, director, officer, employee, agent or controlling person may
become subject, 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, including any information deemed to be a part thereof pursuant to Rule 430A, Rule 430B or
Rule 430C under the Securities Act, or the omission or alleged omission
-23-
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 Issuer Free Writing Prospectus, the information contained in the
Final Term Sheet, any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any prospectus wrapper material distributed in Canada in connection with foreign sales
or the omission or alleged omission therefrom of a material fact, in each case, necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading, and to reimburse each Underwriter, its officers, directors, employees, agents and each
such controlling person for any and all expenses (including the fees and disbursements of counsel
chosen by BAS) as such expenses are reasonably incurred by such Underwriter, or its officers,
directors, employees, agents 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 based upon
and in conformity with written information furnished to the Company by any Underwriter through BAS
expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, the Final Term
Sheet, any preliminary prospectus or the Prospectus (or any amendment or supplement thereto), it
being understood and agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 8(b) hereof. The indemnity agreement set forth in
this Section 8(a) shall be in addition to any liabilities that the Company and Guarantor may
otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company and the Guarantor, each of
their respective directors, each of their respective officers who signed the Registration Statement
and each person, if any, who controls the Company or the Guarantor within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, or any such director, officer or controlling person may become
subject, 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 Issuer Free Writing Prospectus, the
information contained in the Final Term Sheet, 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, and only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Issuer Free Writing Prospectus, the Final Term Sheet, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by BAS expressly for use therein; and
to reimburse the Company or the Guarantor, or any such director, officer or controlling person for
any legal and other expense reasonably incurred by the Company or the Guarantor, 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 Company and
the Guarantors hereby acknowledge that the only information that the Underwriters have furnished to
the Company and Guarantor expressly for use in the Registration Statement, any Issuer Free Writing
Prospectus, the Final Term Sheet, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) are the statements set forth in the sixth, seventh and eighth paragraphs under
the caption of “Underwriting” in the prospectus sup-
-24-
plement. The
indemnity agreement 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
failure to so notify the indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b) above. 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
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 that 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
preceding sentence (it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (other than local counsel), reasonably approved
by the indemnifying party (or by BAS in the case of Section 8(b)), 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.
(d) Settlements. The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, which shall not be withheld
unreasonably, 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
-25-
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 (x) includes an
unconditional release of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (y) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
Section 9. Contribution.
If the indemnification provided for in Section 8 is for any reason 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 Company and the Guarantor, on the one
hand, and the Underwriters, 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 Company and the Guarantor, on the one hand, and
the Underwriters, on the other hand, in connection with the untrue statements or omissions or
alleged untrue statements or alleged omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantor, on the one hand, and the Underwriters, 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 Underwriters, 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 Company and the Guarantor, on the one hand,
and the Underwriters, 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 relates to information supplied by the Company and the Guarantor,
on the one hand, or the Underwriters, 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), any legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company, the Guarantor and the Underwriters 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 Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in this Section
9.
-26-
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting discount or commission received by such
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. The Underwriters’ obligations to contribute pursuant to this Section
9 are several, and not joint, in proportion to their respective underwriting commitments as set
forth opposite their names in Schedule A. For purposes of this Section 9, each director,
officer, employee and agent of an Underwriter and each person, if any, who controls an Underwriter
within the meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company and the Guarantor, each officer
of the Company and the Guarantor who signed the Registration Statement and each person, if any, who
controls the Company and the Guarantor within the meaning of the Securities Act or the Exchange Act
shall have the same rights to contribution as the Company and the Guarantor.
Section 10. Default of One or More of the Several Underwriters.
If, on the Closing Date, any one or more of the several Underwriters shall fail or refuse to
purchase Securities that it or they have agreed to purchase hereunder on such date, and the
aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the
Securities to be purchased on the Closing Date, the other Underwriters shall be obligated,
severally, in the proportions that the aggregate principal amount of Securities set forth opposite
their respective names on Schedule A bears to the aggregate principal amount of Securities
set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions
as may be specified by BAS with the consent of the non-defaulting Underwriters, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date. If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Securities and the aggregate principal amount of Securities with respect to
which such default occurs exceeds 10% of the aggregate principal amount of Securities to be
purchased on such date, and arrangements satisfactory to BAS and the Company for the purchase of
such Securities are not made within 48 hours after such default, this Agreement shall terminate
without liability of any party to any other party except that the provisions of Section 4, Section
6, Section 8, Section 9 and Section 18 shall at all times be effective and shall survive such
termination. In any such case either BAS or the Company shall have the right to postpone the
Closing Date but in no event for longer than seven days in order that the required changes, if any,
to the Registration Statement and the Prospectus or any other documents or arrangements may be
effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement.
Prior to the Closing Date this Agreement may be terminated by BAS by notice given to the
Company if at any time (i) trading or quotation in any of the Company’s or Guarantor’s securities
shall have been suspended or limited by the Commission or by the NYSE, (ii) trading in
-27-
securities
generally on the New York Stock Exchange shall have been suspended or limited, or minimum or
maximum prices shall have been generally established by the Commission or FINRA or on such stock
exchange; (iii) a general banking moratorium shall have been declared by federal or New York
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States has occurred; (iv) in the judgment of BAS there shall have occurred
any Material Adverse Change or (v) there shall have occurred any outbreak or escalation of national
or international hostilities or declaration of a national emergency or war by the United States 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 BAS is material
and adverse and makes it impracticable or inadvisable to market the Securities in the manner and on
the terms described in the Prospectus or to enforce contracts for the sale of securities. Any
termination pursuant to this Section 11 shall be without liability on the part of (a) the Company
and the Guarantor to any Underwriter, except that the Company and Guarantor shall be obligated to
reimburse the expenses of the Representative and the Underwriters pursuant to Sections 4 and 6
hereof or (b) any Underwriter to the Company or the Guarantor.
Section 12. No Advisory or Fiduciary Responsibility.
The Company and the Guarantor acknowledge and agree that: (i) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the public offering price of
the Securities and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company and the Guarantor, on the one hand, and the several Underwriters, on the other
hand, and the Company and the Guarantor are capable of evaluating and understanding and understand
and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii)
in connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or the Guarantor or their respective affiliates, stockholders,
creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an
advisory, agency or fiduciary responsibility in favor of the Company or the Guarantor with respect
to any of the transactions contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company or the Guarantor on other
matters) and no Underwriter has any obligation to the Company or Guarantor with respect to the
offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the
several Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and the Guarantor and
that the several Underwriters have no obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship; and (v) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Company and the Guarantor have consulted their own legal, accounting, regulatory and tax advisors
to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, the Guarantor and the several Underwriters, or any of them, with respect to
the subject matter hereof. The Company and the Guarantor hereby waive and release, to the fullest
extent permitted by law, any claims that the Company or the Guarantor may have against the several
Underwriters with respect to any breach or alleged breach of agency or fiduciary duty.
-28-
Section 13. Representations and Indemnities to Survive Delivery.
The respective indemnities, agreements, representations, warranties and other statements of
the Company and the Guarantor, of their respective officers and of the several Underwriters set
forth in or made pursuant to this Agreement (i) will remain operative and in full force and effect,
regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, officers or employees of any Underwriter, or any person controlling the
Underwriter, the Company, the Guarantor, the officers or employees of the Company or the Guarantor
or any person controlling the Company or the Guarantor, as the case may be or (B) acceptance of the
Securities and payment for them hereunder and (ii) will survive delivery of and payment for the
Securities sold hereunder and any termination of this Agreement.
Section 14. Notices.
All communications hereunder shall be in writing and shall be mailed, hand delivered or
telecopied and confirmed to the parties hereto as follows:
If to BAS or to the Representative:
Banc of America Securities LLC
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000)000-0000
Attention: Xxxxx X. Xxxxx, Esq.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000)000-0000
Attention: Xxxxx X. Xxxxx, Esq.
If to the Company:
Anixter International Inc.
0000 Xxxxxxx Xxxx.
Glenview, Illinois 60026
Facsimile: 000-000-0000
Attention: Treasurer
0000 Xxxxxxx Xxxx.
Glenview, Illinois 60026
Facsimile: 000-000-0000
Attention: Treasurer
with a copy to:
Xxxxxx Xxxxxx LLP
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx XxXxxxxx, Esq.
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxx XxXxxxxx, Esq.
-29-
Any party hereto may change the address for receipt of communications by giving written notice to
the others.
Section 15. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the parties hereto, including
any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of (i) the Company
and the Guarantor, their respective directors, any person who controls the Company or the Guarantor
within the meaning of the Securities Act or the Exchange Act and any officer of the Company and the
Guarantor who signs the Registration Statement, (ii) the Underwriters, the officers, directors,
employees and agents of the Underwriters, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act and the Exchange Act, and (iii) the respective successors
and assigns of any of the above, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The term “successors
and assigns” shall not include a purchaser of any of the Securities from any of the several
Underwriters merely because of such purchase.
Section 16. 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 17. Governing Law Provisions.
(a) Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 18. 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 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 and the contribution provisions of
Section 9, 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 Company, its affairs and its business in order
-30-
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.
-31-
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours, ANIXTER INC. |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Xxx Xxxxxxxxx | ||||
| Vice President — Treasurer | ||||
| ANIXTER INTERNATIONAL INC. |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Xxx Xxxxxxxxx | ||||
| Vice President — Treasurer | ||||
-32-
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representative as
of the date first above written.
Banc of America Securities LLC
Acting as Representative of the
several Underwriters named in
the attached Schedule A.
Acting as Representative of the
several Underwriters named in
the attached Schedule A.
By:
|
BANC OF AMERICA SECURITIES LLC | |||
By:
|
/s/ Xxxx Xxxxxxx | |||
| Xxxx Xxxxxxx | ||||
| Managing Director |
SCHEDULE A
| Aggregate | ||||
| Principal | ||||
| Amount of | ||||
| Notes to be | ||||
| Underwriters | Purchased | |||
Banc of America Securities LLC |
$ | 110,000,000 | ||
X.X. Xxxxxx Securities Inc. |
$ | 54,000,000 | ||
Wachovia Capital Markets, LLC |
$ | 26,000,000 | ||
Scotia Capital (USA) Inc. |
$ | 10,000,000 | ||
Total |
$ | 200,000,000 | ||
SCHEDULE B — FINAL TERM SHEET
ANIXTER INC.
10.00% SENIOR NOTES DUE 2014
FINAL TERM SHEET
Dated: March 6, 2009
10.00% SENIOR NOTES DUE 2014
FINAL TERM SHEET
Dated: March 6, 2009
Issuer:
|
Anixter Inc. | |
Notes:
|
10.00% Senior Notes due 2014 | |
Size:
|
$200,000,000 | |
Maturity:
|
March 15, 2014 | |
Coupon (Interest Rate):
|
10.00% | |
Price to Public:
|
92.625% | |
Yield to Maturity:
|
12.00% | |
Underwriting Discount per Note:
|
2.0% | |
Proceeds (before expenses) to Anixter:
|
$181,250,000 | |
Interest Payment Dates:
|
March 15 and September 15 beginning on September 15, 2009. | |
Record Dates:
|
March 1 and September 1 | |
Optional Redemption:
|
Anixter may redeem all or part of the Notes at any time at its option at a redemption price equal to the greater of (i) the principal amount of the Notes being redeemed plus accrued interest to the redemption date or (ii) a “make-whole” amount based on the yield of a comparable U.S. Treasury Security plus 0.50%. | |
Optional Redemption upon |
||
Certain Equity Offerings:
|
In addition, at any time prior to March 15, 2012, Anixter may redeem up to 35% of the Notes at a redemption price of 110% of the principal amount of the Notes redeemed, plus accrued and unpaid interest, if any, to the redemption date, with the net cash proceeds of one or more public sales of Anixter International common stock. | |
Trade Date:
|
March 6, 2009 | |
Expected Settlement Date:
|
March 11, 2009 |
Joint Book-Running Managers:
|
Banc of America Securities LLC | |
| X.X. Xxxxxx Securities Inc. | ||
| Wachovia Capital Markets, LLC | ||
Co-Manager:
|
Scotia Capital (USA) Inc. | |
CUSIP:
|
000000XX0 | |
Type of Offering:
|
SEC registered |
The following changes are being made to the “Description of Debt Securities” section in the
Prospectus dated September 22, 2008 (the “Prospectus”) to generally conform the Limitations on
Secured Debt covenant and the definition of “Unrestricted Subsidiary” to the similar covenant and
definition in Anixter’s Indenture that is applicable to its 5.95% Senior Notes due 2015:
(i) The exception contained in the sixth bullet of the covenant titled “Certain Covenants of
Anixter and Anixter International—Limitations on Secured Debt” on page 9 of the Prospectus is
deleted and will be replaced with the following:
“Security Interests securing indebtedness of Anixter or a Restricted Subsidiary owing to an
Unrestricted Subsidiary of the character described in clause (c) of the definition of
Unrestricted Subsidiary that finances accounts receivable;”
(ii) The definition of Unrestricted Subsidiary on page 18 of the Prospectus under “Certain
Covenants of Anixter and Anixter International—Certain Definitions” is deleted in its entirety and
replaced with the following:
“Unrestricted Subsidiary” means (a) any Subsidiary acquired or organized after the date of the
Second Supplemental Indenture to the Indenture, provided, however, that such Subsidiary is not a
successor, directly or indirectly, to, and does not directly or indirectly own any equity interest
in, any Restricted Subsidiary, (b) any Subsidiary the principal business and assets of which are
located outside the United States of America (including its territories and possessions), (c) any
Subsidiary the principal business of which consists of financing the acquisition or disposition of
machinery, equipment, inventory, accounts receivable and other real, personal and intangible
property by persons including Anixter, Anixter International or a Subsidiary, (d) any Subsidiary
the principal business of which is owning, leasing, dealing in or developing real property for
residential or office building purposes, and (e) any Subsidiary substantially all the assets of
which consist of stock or other securities of an Unrestricted Subsidiary or Unrestricted
Subsidiaries of the character described in clauses (a) through (d) of this paragraph, unless and
until, in each of the cases specified in this paragraph, any such Subsidiary shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the definition of “Restricted
Subsidiary.”
(iii) The following sentence at the end of the definition of Secured Debt on page 17 of the
Prospectus under “Certain Covenants of Anixter and Anixter International—Certain Definitions” is
deleted in its entirety:
“Notwithstanding the foregoing, a binding commitment to lend under a revolving credit
facility shall be deemed to be an incurrence of indebtedness in the full amount of such
commitment on the date that such commitment is entered into, regardless of whether the full
amount of such revolving credit facility is actually borrowed, and thereafter the amount of
such commitment shall be deemed to be fully borrowed at all times for purposes of the
“Limitations on Secured Debt” covenant.”
(iv) The definition of Secured Leverage Ratio on page 17 of the Prospectus under “Certain Covenants
of Anixter and Anixter International—Certain Definitions” is deleted in its entirety.
The following changes are being made to the “Supplemental Description of the Notes” section in the
Preliminary Prospectus Supplement (as defined below):
(i) The following sentence at the end of the definition of Total Debt on page S-20 of the
Preliminary Prospectus Supplement under “Certain Covenants of Anixter and Anixter
International—Certain Definitions” is deleted in its entirety:
“Notwithstanding the foregoing, a binding commitment to lend under a revolving credit
facility shall be deemed to be an incurrence of indebtedness in the full amount of such
commitment on the date that such commitment is entered into, regardless of whether the full
amount of such revolving credit facility is actually borrowed, and thereafter the amount of
such commitment shall be deemed to be fully borrowed at all times for purposes of the Total
Leverage Ratio.”
(ii) The parenthetical “(other than under a revolving credit facility as set forth in the last
sentence of the definition of Total Debt)” in the first sentence of the second paragraph of the
definition of Total Leverage Ratio on page S-21 of the Preliminary Prospectus Supplement under
“Certain Covenants of Anixter and Anixter International—Certain Definitions” is deleted in its
entirety and replaced with the following:
“(other than the incurrence or repayment of Indebtedness in the ordinary course of
business for working capital purposes pursuant to any revolving credit arrangement)”
The information in this term sheet supplements Anixter’s preliminary prospectus supplement, dated
March 2, 2009 (the “Preliminary Prospectus Supplement”) and supersedes the information in the
Preliminary Prospectus Supplement to the extent inconsistent with the information in the
Preliminary Prospectus Supplement. This term sheet is qualified in its entirety by reference to
the Preliminary Prospectus Supplement. Terms used herein but not defined herein shall have the
respective meanings as set forth in the Preliminary Prospectus Supplement.
Other financial information presented in the Preliminary Prospectus Supplement is deemed to have
changed to the extent effected by the changes described herein.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively,
the issuer, any underwriter or any dealer
participating in the offering will arrange to send you
the prospectus if you request it by calling Banc of America Securities LLC toll-free 0-000-000-0000
or by e-mailing a request to
xx.xxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx or by calling X.X. Xxxxxx Securities Inc. at the following collect number: 0-000-000-0000 or by calling Wachovia Capital Markets, LLC at the following toll -free number: 0-000-000-0000 or by calling Scotia Capital (USA) Inc. at the following toll -free number: 0-000-000-0000.
xx.xxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx or by calling X.X. Xxxxxx Securities Inc. at the following collect number: 0-000-000-0000 or by calling Wachovia Capital Markets, LLC at the following toll -free number: 0-000-000-0000 or by calling Scotia Capital (USA) Inc. at the following toll -free number: 0-000-000-0000.
