WORTHINGTON INDUSTRIES, INC. UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Version
$250,000,000
WORTHINGTON INDUSTRIES, INC.
4.550% Notes due 2026
April 10, 2014
X.X. Xxxxxx Securities LLC
Xxxxx Fargo Securities, LLC,
As Representatives of the Several Underwriters,
c/o X.X. Xxxxxx Securities LLC,
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 2:32 p.m. (Eastern Daylight Saving Time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” of the Registration Statement relating to the Offered Securities means the time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities Exchange Act of 1934.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being so specified in Schedule B to this Agreement
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Offered Securities in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Trust Indenture Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of “issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company Accounting Oversight Board and the rules of the New York Stock Exchange (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and not retroactively.
“Trust Indenture Act” means the Trust Indenture Act of 1939.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the Act.
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(i) Well-Known Seasoned Issuer Status. (A) At the time of initial filing of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 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 (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the exemption of Rule 163, the Company was a “well known seasoned issuer” as defined in Rule 405, including not having been an “ineligible issuer” as defined in Rule 405.
(ii) Effectiveness of Automatic Shelf Registration Statement. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially became effective within three years of the date of this Agreement. If immediately prior to the Renewal Deadline (as hereinafter defined), any of the Offered Securities remain unsold by the Underwriters, the Company will prior to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Offered Securities, in a form satisfactory to the Representatives. If the Company is no longer eligible to file an automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf registration statement relating to the Offered Securities, in a form satisfactory to the Representatives, and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the expired registration statement relating to the Offered Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. “Renewal Deadline” means the third anniversary of the initial effective time of the Registration Statement.
(iv) Filing Fees. The Company has paid or shall pay the required Commission filing fees relating to the Offered Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
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(ee) Ratings. No “nationally recognized statistical rating organization” as such term is defined for purposes of Section 3(a)(62) of the Exchange Act (i) has imposed (or has informed the Company that it is considering imposing) any condition (financial or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company or (ii) has indicated to the Company that it is considering any of the actions described in Subsection 7(c)(ii) hereof.
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The Company will deliver the Offered Securities to or as instructed by the Representatives for the accounts of the several Underwriters in a form reasonably acceptable to the Representatives against payment of the purchase price by the Underwriters in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Representatives drawn to the order of the Company at the office of Shearman & Sterling LLP at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, at 9:00 A.M., New York time, on April 15, 2014, or at such other time not later than seven full business days thereafter as the Representatives and the Company mutually determine, such time being herein referred to as the “Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The Offered Securities so to be delivered or evidence of their issuance will be made available for checking at the above office of Shearman & Sterling LLP at least 24 hours prior to the Closing Date.
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(h) Payment of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including but not limited to any filing fees and other expenses (including fees and disbursements of counsel to the Underwriters) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives designate and the preparation and printing of memoranda relating thereto, any fees charged by investment rating agencies for the rating of the Offered Securities, costs and expenses related to the review by the Financial Industry Regulatory Authority of the Offered Securities (including filing fees and the fees and expenses of counsel for the Underwriters relating to such review), costs and expenses relating to investor presentations or any “road show” in connection with the offering and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s officers and employees and any other expenses of the Company including the chartering of airplanes, fees and expenses incident to listing the Offered Securities on the New York Stock Exchange, NYSE Amex, the NASDAQ Stock Market and other national and foreign exchanges, fees and expenses in connection with the registration of the Offered Securities under the Act, and expenses incurred in distributing preliminary prospectuses and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors. It is understood, however, that except as provided in Subsections 5(c), 5(e) and 5(h), Section 8 and Section 10, the Underwriters will pay all of their own costs and expenses, including the fees and expenses of their counsel.
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(a) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission filing where required, legending and record keeping.
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(c) No Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the financial condition, results of operations, business, properties or prospects of the Company and its Subsidiaries taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; (iii) any change in the U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which is such as to make it, in the reasonable judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption of settlements of securities, payment, or clearance services in the United States or any other country where securities of the Company are listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by the United States Congress or any other national or international calamity or emergency if, in the reasonable judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered Securities or to enforce contracts for the sale of the Offered Securities.
The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of the Closing Date or otherwise.
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(a) Indemnification of Underwriters. The Company will indemnify and hold harmless each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based (i) upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time or arise out of or are based upon the omission or alleged omission 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 any material fact contained in any part of any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, and will reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b) Indemnification of Company. Each Underwriter will severally and not jointly indemnify and hold harmless the Company, each of its directors and each of its officers who signs the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”), against any losses, claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based (i) upon any untrue statement or alleged untrue statement of any material fact contained in any part of the Registration Statement at any time or arise out of or are based upon the omission or alleged omission 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 any material fact contained in any part of any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of the following information in the Final Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the third paragraph under the caption “Underwriting” and the information contained in the ninth paragraph under the caption “Underwriting” regarding stabilizing and other transactions.
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16. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in the City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in the City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
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Execution Version
If the foregoing is in accordance with the Representatives’ understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms.
Very truly yours, | |
Worthington Industries, Inc. | |
By:____/s/B. Xxxxxx Rose_______________________ | |
Name: B. Xxxxxx Xxxx | |
Title: Vice President-Chief Financial Officer |
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The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written.
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Acting on behalf of themselves and as the Representatives of the several Underwriters
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By: X.X. Xxxxxx Securities LLC
By: /s/ Som Xxxxxxxxxxxxx
Name: Som Xxxxxxxxxxxxx
Title: Vice President
By Xxxxx Fargo Securities, LLC
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Director
SCHEDULE A
Underwriter
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Principal
Amount of
Offered Securities
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X.X. Xxxxxx Securities LLC
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$ | 112,500,000 | ||
Xxxxx Fargo Securities, LLC
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$ | 85,000,000 | ||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
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$ | 17,500,000 | ||
PNC Capital Markets LLC
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$ | 17,500,000 | ||
U.S. Bancorp Investments, Inc.
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$ | 17,500,000 | ||
Total
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$ | 250,000,000 |
SCHEDULE B
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
1. Final term sheet, dated April 10, 2014 a copy of which is attached hereto as Schedule B-1.
The following information is also included in the General Disclosure Package:
None
SCHEDULE B-1
WORTHINGTON INDUSTRIES, INC.
$250,000,000 4.550% Notes due 2026
Pricing Term Sheet
This term sheet to the preliminary prospectus supplement dated April 10, 2014 should be read together with the preliminary prospectus supplement before making a decision in connection with an investment in the securities. The information in this term sheet supersedes the information contained in the preliminary prospectus supplement to the extent that it is inconsistent therewith. Terms used but not defined herein have the meaning ascribed to them in the preliminary prospectus supplement.
Issuer:
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Worthington Industries, Inc.
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Senior Unsecured Notes
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Title of Securities:
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4.550% Notes due 2026
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Pricing Date:
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April 10, 2014
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Settlement Date: (T+3)
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April 15, 2014
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Interest Payment Dates:
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April 15 and October 15, commencing October 15, 2014
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Final Maturity Date:
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April 15, 0000
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Xxxxxxxxx Xxxxxxxxx Xxxxxx:
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$250,000,000
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Benchmark Treasury:
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2.75% UST due February 15, 2024
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Benchmark Treasury Price / Yield:
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101-03 / 2.623%
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Spread to Benchmark Treasury:
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+ 195 basis points
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Yield to Maturity:
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4.573%
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Coupon:
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4.550%
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Public Offering Price:
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99.789%
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Net Proceeds (before expenses):
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$247,785,000
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Optional Redemption Provision:
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At any time at a discount rate equal to the Treasury Rate plus 30 basis points
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Denominations:
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$2,000 and integral multiples of $1,000 in excess thereof
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CUSIP/ISIN:
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981811 AE2 / US981811AE20
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Joint Book-Running Managers:
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X.X. Xxxxxx Securities LLC, Xxxxx Fargo Securities, LLC
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Co-Managers:
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Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, PNC Capital Markets LLC, U.S. Bancorp Investments, Inc.
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The issuer has filed a registration statement (including a prospectus and a preliminary prospectus supplement) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus included 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 free of charge 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 X.X. Xxxxxx Securities LLC collect at 0-000-000-0000 and Xxxxx Fargo Securities, LLC toll-free at 0-000-000-0000.
Exhibit A-1
VORYS
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Legal Counsel
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00 Xxxx Xxx Xx.
XX Xxx 0000
Xxxxxxxx, Xxxx 00000-0000
614.464.6400 | xxx.xxxxx.xxx
Founded 1909
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As the Underwriters listed on Schedule A of the
Underwriting Agreement referred to below
c/o X.X. Xxxxxx Securities LLC,
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
We have acted as counsel to Worthington Industries, Inc. (the “Company”) in connection with the sale of $250,000,000 aggregate principal amount of the Company’s 4.550% Notes due 2026 (the “Offered Securities”) to the several parties named above (the “Underwriters”), for whom X.X. Xxxxxx Securities LLC and Xxxxx Fargo Securities, LLC are acting as representatives (the “Representatives”), pursuant to the Underwriting Agreement, dated April 10, 2014 (the “Underwriting Agreement”), among the Company and the Representatives. The Offered Securities are to be issued pursuant to the provisions of the Base Indenture, dated as of April 13, 2010, between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture, dated as of April 15, 2014 (collectively, the “Indenture”). The opinions expressed herein are furnished to the Representatives pursuant to Subsection 7(d) of the Underwriting Agreement. Unless otherwise defined herein, terms defined in the Underwriting Agreement and used herein shall have the meanings given to them in the Underwriting Agreement.
In connection with the preparation of the opinions expressed herein, we have examined and are familiar with each of the following:
(a) the corporate documents and records of the Company consisting of (i) its Amended Articles of Incorporation, (ii) its Code of Regulations, (iii) resolutions adopted by its Board of Directors (or a duly authorized committee thereof) and (iv) such other corporate documents, proceedings and records of the Company as we have deemed necessary or appropriate for purposes of the opinions expressed herein (collectively, the “Corporate Legislation”);
(b) the Underwriting Agreement;
(c) the Registration Statement;
(d) the General Disclosure Package;
(e) the Final Prospectus;
(f) the Indenture;
(g) the Offered Securities;
(h) a certificate of certain officers of the Company (the “Officers’ Certificate”) as to certain questions of fact material to the opinions expressed herein;
(i) a certificate from the Secretary of State of the State of Ohio, dated as of a recent date, with respect to the good standing of the Company (the “Ohio Certificate of Good Standing”);
(j) a certificate of certain officers of the Company pursuant to the Underwriting Agreement (the “Underwriting Certificate”); and
(k) such other records, documents or instruments as in our judgment are necessary or appropriate to enable us to render the opinions expressed herein.
We have relied, to the extent we deemed appropriate, on the Officers’ Certificate, the Underwriting Certificate and the representations and warranties of the Company contained in the Underwriting Agreement with respect to various questions of fact material to the opinions expressed herein, including, without limitation, the completeness of corporate and other records of the Company furnished to us for our examination, the existence and nature of certain agreements and other documents of the Company and other factual matters. In rendering our opinions herein, we also have examined such authorities of law as we have deemed relevant as a basis for such opinions.
In our examinations and in rendering the opinions expressed herein, we have assumed, with your consent and without independent investigation or examination, (a) the genuineness of all signatures, the authority of all individuals entering and maintaining records, the authenticity of documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies and the authenticity of such originals of such latter documents; (b) that the parties to the Underwriting Agreement, the Indenture and the Offered Securities, other than the Company, have the corporate, limited liability company, partnership and/or individual power and authority to enter into and perform their respective obligations under such agreements and instruments; (c) the due completion, execution, acknowledgement and authentication, as appropriate, of the Underwriting Agreement, the Indenture and the Offered Securities as indicated thereon and the delivery of such agreements and instruments and of all other documents and instruments and consideration recited therein by all parties thereto, other than the Company; and (d) that the Underwriting Agreement, the Indenture and the Offered Securities constitute the legal, valid and binding obligations of the respective parties thereto, other than the Company, enforceable against such parties in accordance with their respective terms.
The opinions expressed herein are subject to the following qualifications, limitations and assumptions:
(1) We express no opinion as to the enforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy.
(2) Implied covenants of good faith and fair dealing.
(3) With respect to the opinions in paragraphs (vi) and (vii) only, the effects of bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization, receivership, moratorium and other similar laws (including judicially developed documents doctrines with respect to such laws) affecting the rights and remedies of creditors generally.
(4) With respect to the opinions in paragraphs (vi) and (vii) only, the effects of general principles of equity, whether applied by a court of law or equity.
(5) The application, if any, of laws concerning state securities law matters, concerning tax or tax effects or concerning environmental matters.
We express no opinion concerning the enforceability of the waiver of rights or defenses contained in the Indenture or the Offered Securities.
Whenever any matter is indicated to be based on our knowledge, we are referring to the actual knowledge of the Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP attorneys who have represented the Company in connection with the transactions contemplated by the Underwriting Agreement and the Indenture, after inquiry with such other attorneys of this firm as we have deemed appropriate. Without limiting the generality of the foregoing, we have made no examination of the character, organization, activities or authority of any parties to the Underwriting Agreement, the Indenture or the Offered Securities, other than the Company, that might have any effect upon the opinions expressed herein; and we have neither examined, nor do we opine upon, any provision or matter to the extent that the examination or opinion would require a financial, mathematical or accounting calculation or determination. Additionally, our opinion expressed in paragraph (i) below as to the valid existence and good standing of the Company is based solely upon our review of the Ohio Certificate of Good Standing.
As used herein, the phrase “corporate power and authority” means, with respect to the Company, the power and authority under its Corporate Legislation and the General Corporation Law of the State of Ohio.
Based upon and subject to the foregoing and further qualifications and limitations set forth below, as of the date hereof (or as of the date of any certificate stated to have been relied on by us), we are of the opinion that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Ohio.
(ii) The Company has requisite corporate power and authority to own its properties and conduct its business as described in the General Disclosure Package, to enter into and perform its obligations under the Underwriting Agreement and the Indenture and to authorize, issue and sell the Offered Securities as contemplated by the Underwriting Agreement and the Indenture.
(iii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(iv) The Indenture has been duly qualified under the Trust Indenture Act.
(v) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms.
(vi) The Offered Securities delivered on the Closing Date have been duly authorized, executed, issued and delivered by the Company and, when authenticated by the Trustee in the manner provided in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, and will be entitled to the benefits provided by the Indenture.
(vii) The Offered Securities delivered on the Closing Date conform to the information in the General Disclosure Package and to the description of such Offered Securities contained in the Final Prospectus.
(viii) The Company is not, and immediately after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the General Disclosure Package will not be, an “investment company” as defined in the Investment Company Act.
(ix) The statements in the General Disclosure Package and the Final Prospectus under the headings “Description of Debt Securities,” “Description of Notes” and “Certain U.S. Federal Income Tax Considerations”, insofar as such statements constitute matters of law, summaries of legal matters or documents, or legal conclusions, fairly present and summarize, in all material respects, such matters.
(x) Each report filed with the Commission pursuant to the Exchange Act which was incorporated or was deemed to be incorporated by reference in the Registration Statement, any Statutory Prospectus or the Final Prospectus complied when so filed as to form in all material respects with the Exchange Act (other than the financial statements or schedules or other financial or accounting information or data included or incorporated by reference therein, as to which no opinion is rendered).
(xi) No consent, approval, authorization or order of, or registration or filing with, any governmental agency or body or any court is required for the Company’s consummation of the transactions contemplated by the Underwriting Agreement in connection with the offering, issuance and sale of the Offered Securities by the Company, except such as have been obtained or made and such as may be required under the Securities Act and applicable state securities laws.
(xii) The Company’s execution, delivery and performance of the Indenture and the Underwriting Agreement, issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a material breach or violation of any of the terms and provisions of, or constitute a material default under, or result in the imposition of any material lien, charge or encumbrance upon any property or assets of the Company pursuant to (1) its Amended Articles of Incorporation or Code of Regulations, (2) any statute, rule or regulation of any governmental agency or body applicable to the Company that in our experience is normally applicable to transactions of the type contemplated by the Underwriting Agreement or the Indenture, (3) to our knowledge, any order of any of court, governmental agency or body having jurisdiction over the Company or any of its properties or (4) any agreement or instrument that is filed or incorporated by reference as an exhibit to the Registration Statement, the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2013, or the Company’s Quarterly Report on Form 10-Q for the quarterly period ended February 28, 2014.
(xiii) The Registration Statement has become effective under the Act and the Final Prospectus was filed with the Commission pursuant Rule 424(b)(3) on April 10, 2014. To our knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act.
(xiv) The Registration Statement, as of the Effective Time relating to the Offered Securities, and the Final Prospectus, as of the date of the Underwriting Agreement, and each amendment or supplement thereto, as of the date hereof, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations.
The opinions expressed herein are limited to the federal laws of the United States of America and the laws of the State of Ohio and, with respect to the enforceability opinions in paragraphs (vi) and (vii), the laws of the State of New York, having effect on the date hereof. Accordingly, we express no opinion as to the laws of any other jurisdiction or as to any time after the date hereof. We express no opinion herein concerning any statutes, laws, ordinances, orders, decrees, administrative decisions, rules or regulations of any county, town, municipality or special political subdivision (whether created or enabled through legislative action at the federal, state or regional level).
The opinions expressed herein are furnished to you solely in connection with the transactions described herein. Our opinions may not be used or relied upon by you for any other purpose and may not be relied upon for any purpose by any other person without our prior written consent; provided, however, that this opinion letter may be delivered to (but not relied upon by) your regulators, accountants, attorneys and other professional advisers and may be used in connection with any legal or regulatory proceeding relating to the subject matter of this opinion letter for the purpose of proving this opinion letter’s existence.
Very truly yours,
Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP
Schedule A
Underwriters
Xxxxx Fargo Securities, LLC
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
PNC Capital Markets LLC
U.S. Bancorp Investments, Inc.
EXHIBIT A-2
NEGATIVE ASSURANCE LETTER
OF
VORYS, XXXXX, XXXXXXX AND XXXXX LLP
April 15, 2014
As the Underwriters listed on Schedule A of the
Underwriting Agreement referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
We have acted as counsel to Worthington Industries, Inc. (the “Company”) in connection with the sale of $250,000,000 aggregate principal amount of the Company’s 4.550% Notes due 2026 (the “Offered Securities”) to the several parties named above (the “Underwriters”) for whom X.X. Xxxxxx Securities LLC and Xxxxx Fargo Securities, LLC are acting as representatives (the “Representatives”), pursuant to the Underwriting Agreement dated April 15, 2014 (the “Underwriting Agreement”) between the Company and the Representatives. This letter is being furnished to the Representatives pursuant to Subsection 7(d) of the Underwriting Agreement. Unless otherwise defined herein, terms defined in the Underwriting Agreement and used herein shall have the meanings given to them in the Underwriting Agreement.
We have participated in conferences with officers and other representatives of the Company, representatives of the Company’s independent registered public accounting firm and representatives of the Underwriters at which the contents of the Registration Statement, the General Disclosure Package, the Final Prospectus, and any supplements or amendments thereto, were discussed and, although we have not checked the accuracy or completeness of or otherwise verified, and are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of, the statements contained in the Registration Statement, the Final Prospectus, the General Disclosure Package or any documents that constitute part of or are incorporated by reference therein (other than as specified in paragraph (x) of our opinion of even date herewith), on the basis of the foregoing, but without independent check or verification, no facts have come to our attention which have caused us to believe that (i) any part of the Registration Statement, as of the Effective Time relating to the Offered Securities or as of any Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Final Prospectus, as of the date of the Underwriting Agreement or as of the Closing Date, contained any untrue statement of a material fact or omitted 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; or (iii) the General Disclosure Package, as of the Applicable Time or as of the Closing Date, contained any untrue statement of a material fact or omitted 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 (it being understood that we express no belief as to the financial statements or schedules or other financial or accounting information or data included or incorporated by reference in the Registration Statement, the Final Prospectus, the General Disclosure Package or any amendments or supplements thereto and the Statement of Eligibility and Qualification of the Trustee on Form T-1).
This letter is given as of the date hereof and we assume no obligation to advise you of changes that may hereafter be brought to our attention. This letter is furnished to you solely for your information in connection with the transactions described herein and, without our prior written consent, may not be quoted in whole or in part or otherwise referred to, nor filed with any governmental agency or any other person, used or relied upon by you for any other purpose or relied upon for any purpose by any other person.
Very truly yours,
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Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP |
EXHIBIT B
OPINION OF XXXX X. XXXXXXXX
April 15, 2014
Underwriters on Schedule A Attached Hereto
|
As the Underwriters listed on Schedule A of the
Underwriting Agreement referred to below
c/o X.X. Xxxxxx Securities LLC,
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
I am general counsel to Worthington Industries, Inc. (the “Company”) and have represented the Company in connection with the sale of $250,000,000 aggregate principal amount of the Company’s 4.550% Notes due 2026 (the “Offered Securities”) to the several parties named above (the “Underwriters”) for whom X.X. Xxxxxx Securities LLC and Xxxxx Fargo Securities, LLC are acting as representatives (the “Representatives”), pursuant to the Underwriting Agreement dated April 10, 2014 (the “Underwriting Agreement”) among the Company and the Representatives. The Offered Securities are to be issued pursuant to the provisions of the Base Indenture, dated as of April 13, 2010, between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the Second Supplemental Indenture, dated as of April 15, 2014 (collectively, the “Indenture”). The opinions expressed herein are furnished to you pursuant to Subsection 7(d) of the Underwriting Agreement. Unless otherwise defined herein, terms defined in the Underwriting Agreement and used herein shall have the meanings given to them in the Underwriting Agreement.
In connection with the preparation of the opinions expressed herein, I have examined and am familiar with each of the following:
(a) the corporate documents and records of the Company consisting of (i) its Amended Articles of Incorporation, (ii) its Code of Regulations, (iii) resolutions adopted by its Board of Directors (or a duly authorized committee thereof) and (iv) such other corporate documents, proceedings and records of the Company as I have deemed necessary or appropriate for purposes of the opinions expressed herein;
(b) the Underwriting Agreement;
(c) the Registration Statement;
(d) the General Disclosure Package;
(e) the Final Prospectus;
(f) the Indenture and the Offered Securities; and
(g) such other records, documents or instruments as in my judgment are necessary or appropriate to enable me to render the opinions expressed herein.
In rendering the opinions expressed herein, I also have examined such authorities of law as I have deemed relevant as a basis for my opinion and have relied on the representations and warranties of the Company in the Underwriting Agreement as to certain factual matters.
In my examinations and in rendering the opinions expressed herein, I have assumed, with your consent and without independent investigation or examination, (a) the genuineness of all signatures, the authenticity of documents submitted to me as originals, the conformity to original documents of all documents submitted to me as copies and the authenticity of such originals of such latter documents; (b) that the parties to the Underwriting Agreement, the Indenture and the Offered Securities, other than the Company, have the corporate, limited liability company, partnership and/or individual power and authority to enter into and perform their respective obligations under such agreements and instruments; (c) the due completion, execution, acknowledgement and authorization, as appropriate, of the Underwriting Agreement, the Indenture and the Offered Securities as indicated thereon and the delivery of such agreements and instruments and of all other documents and instruments and consideration recited therein by all parties thereto, other than the Company; and (d) that the Underwriting Agreement, the Indenture and the Offered Securities constitute the legal, valid and binding obligations of the respective parties thereto, other than the Company, enforceable against such parties in accordance with their respective terms.
Whenever any matter is indicated to be based on my knowledge, I am referring to my actual knowledge, after inquiry with the other members of the legal department of the Company. Without limiting the generality of the foregoing, I have made no examination of the character, organization, activities or authority of any parties to the Underwriting Agreement, the Indenture or the Offered Securities, other than the Company, that might have any effect upon the opinions expressed herein; and I have neither examined, nor do I opine upon, any provision or matter to the extent that the examination or opinion would require a financial, mathematical or accounting calculation or determination.
Based upon and subject to the foregoing and further qualifications and limitations set forth below, as of the date hereof (or as of the date of any certificate stated to have been relied on by me), I am of the opinion that:
(i) Except as described in the Registration Statement, the Final Prospectus or the General Disclosure Package, to my knowledge, there are no pending actions, suits or proceedings against the Company, any of its Subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its Subsidiaries, after giving effect to insurance and reserves with respect thereto, would individually or in the aggregate reasonably be expected to result in a Material Adverse Effect, or would be reasonably be expected to materially and adversely affect the ability of the Company to perform its obligations under the Indenture or the Underwriting Agreement; and the descriptions relating to any such pending or threatened actions, suits or proceedings included or incorporated by reference in the Registration Statement, any Statutory Prospectus or the General Disclosure Package fairly summarize such matters in all material respects.
(ii) To my knowledge, there are no material legal or governmental proceedings or material contracts or agreements of the Company or its Subsidiaries which are required to be described in the Registration Statement, the Final Prospectus or the General Disclosure Package, or to be filed as exhibits to the Registration Statement, which have not been so described or filed as required.
(iii) The Company is not (A) in violation of its Amended Articles of Incorporation or Code of Regulations or (B) to my knowledge, (i) in violation of any statute, law, rule, judgment, regulation, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties or (ii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any agreement or instrument that is described or referred to in the Registration Statement or the General Disclosure Package or filed or incorporated by reference as an exhibit to the Registration Statement, the Company’s Annual Report on Form 10-K for the fiscal year ended May 31, 2013, or the Company’s Quarterly Report on Form 10-Q for the quarterly period ended February 28, 2014, except for such violations or defaults as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(iv) To my knowledge, there are no persons with registration or other similar rights to have any securities registered for sale under the Registration Statement or included in the offering contemplated by the Underwriting Agreement, except for such rights as have been duly waived or are not applicable to the offering of the Offered Securities.
The opinions expressed herein are limited to the federal laws of the United States of America and the laws of the State of Ohio having effect on the date hereof. Accordingly, I express no opinion as to the laws of any other jurisdiction or as to any time after the date hereof.
This opinion letter is furnished to you solely in connection with the transactions described herein. This opinion letter may not be used or relied upon by you for any other purpose, and may not be relied upon for any purpose by any other person, without my prior written consent; provided, however, that this opinion letter may be delivered to (but not relied upon by) your regulators, accountants, attorneys and other professional advisers, and may be used in connection with any legal or regulatory proceeding relating to the subject matter of this opinion letter for the purpose of proving this opinion letter’s existence.
Very truly yours, | |
Xxxx X. Xxxxxxxx, | |
Vice President-Administration, | |
General Counsel and Secretary |