1
Exhibit 1.01
TERMS AGREEMENT
February 23, 2001
Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Dear Sirs:
We understand that Xxxxxxx Xxxxx Barney Holdings Inc., a New York
corporation (the "Company"), proposes to issue and sell $45,000,000 aggregate
principal amount of its Equity Linked Securities (ELKS ) (4,500,000 ELKS) based
upon Nasdaq-100 Shares due February 28, 2002 (the "Securities"). Subject to the
terms and conditions set forth herein or incorporated by reference herein, the
underwriters (the "Underwriters") offer to purchase, severally and not jointly,
the principal amount of the Securities as set forth opposite their respective
names on the list attached hereto at 97.5% of the principal amount thereof. The
Closing Date shall be February 28, 2001 at 9:00 a.m. at the offices of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The Securities shall have the following terms:
Title: Equity Linked Securities (ELKS ) based upon
Nasdaq-100 Shares due February 28, 2002
Maturity: February 28, 2002
Coupon: Each ELKS will pay a coupon of $0.75 in cash
semi-annually on each Interest Payment Date. Each
coupon will be composed of $0.2419 of interest and
a partial payment of an option premium in the
amount of $0.5081.
2
Maturity Payment: Holders of the ELKS will be entitled to
receive at maturity the Maturity Payment (as
defined in the Prospectus Supplement dated
February 23, 2001 relating to the
Securities)
Interest Payment Dates: August 28, 2001 and February 28, 2002
Regular Record Dates: August 27, 2001 and February 27, 2002
Initial Price To Public: 100% of the principal amount thereof, plus accrued
interest from February 28, 2001 to date
of payment and delivery
Redemption Provisions: The Securities are not redeemable by the Company
prior to maturity
Trustee: The Bank of New York
Indenture: Indenture, dated as of October 27, 1993, as
amended from time to time
All the provisions contained in the document entitled "Xxxxxxx Xxxxx
Barney Holdings Inc. - Debt Securities - Underwriting Agreement Basic
Provisions" and dated December 1, 1997 (the "Basic Provisions"), a copy of which
you have previously received, are, except as indicated below, herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Terms Agreement to the same extent as if the Basic Provisions had been set
forth in full herein. Terms defined in the Basic Provisions are used herein as
therein defined.
Basic Provisions varied with respect to this Terms Agreement:
(A) Notwithstanding the provisions set forth in Section 3 of the Basic
Provisions, the Company and the Underwriters hereby agree that the
Securities will be in the form of Book-Entry Notes and shall be
delivered on February 28, 2001 against payment of the purchase price to
the Company by wire transfer in immediately available funds to such
accounts with such financial institutions as the Company may direct.
(B) Paragraph 4(j) of the Basic Provisions shall be amended and restated as
follows: "The Company will not, without the consent of Xxxxxxx Xxxxx
Barney Inc., offer, sell, contract to offer or sell or otherwise
dispose of any securities, including any backup undertaking for such
securities, of the Company, in each case that are substantially similar
to the Securities or any security convertible into or exchangeable for
the ELKS or such substantially similar securities, during the period
beginning the date of the Terms Agreement and ending the Closing Date."
2
3
The Underwriters hereby agree in connection with the underwriting of
the Securities to comply with the requirements set forth in any applicable
sections of Section 2720 to the By-Laws of the National Association of
Securities Dealers, Inc.
Xxxxx Xxxxx, Esq., is counsel to the Company. Cleary, Gottlieb, Xxxxx &
Xxxxxxxx is counsel to the Underwriters. Cleary, Gottlieb, Xxxxx & Xxxxxxxx is
special tax counsel to the Company.
Please accept this offer no later than 9:00 p.m. on February 23, 2001,
by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us, or by sending us a written acceptance in the
following form:
3
4
"We hereby accept your offer, set forth in the Terms Agreement, dated
February 23, 2001, to purchase the Securities on the terms set forth therein."
Very truly yours,
XXXXXXX XXXXX BARNEY INC.,
as Representative of the several underwriters
By XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
ACCEPTED:
XXXXXXX XXXXX BARNEY HOLDINGS INC.
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
4
5
UNDERWRITERS PRINCIPAL AMOUNT NUMBER OF ELKS
------------ ---------------- --------------
Xxxxxxx Xxxxx Xxxxxx Inc. $44,536,000 4,453,600
Countrywide Securities Corporation $ 464,000 46,400
----------- -----------
Total $45,000,000 4,500,000
