--------------------------------------------------------------------------------
2,530,000 Shares
U.S. Home & Garden Trust I
(a Delaware Business Trust)
___% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Trust Preferred Security)
UNDERWRITING AGREEMENT
________ __, 1998
EVEREN Securities, Inc.
&
Josephthal & Co. Inc.
--------------------------------------------------------------------------------
2,530,000 Shares
U.S. Home & Garden Trust I
(a Delaware Business Trust)
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Trust Preferred Security)
UNDERWRITING AGREEMENT
_________ __, 1998
EVEREN Securities, Inc.
Josephthal & Co. Inc.
As Representatives of
the Several Underwriters
c/o EVEREN Securities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
U.S. Home & Garden Inc., a Delaware corporation (the "Company"), and
its financing subsidiary, U.S. Home & Garden Trust I, a Delaware business trust
(the "Trust," and together with the Company, the "Offerors"), confirm their
agreements with the several underwriters listed in Schedule I hereto (the
"Underwriters"), for whom EVEREN Securities, Inc. and Josephthal & Co. Inc.
(collectively, the "Representatives") have been duly authorized to act as
representatives, as follows:
1. The Shares. Subject to the terms and conditions set forth in this
agreement (the "Agreement"), the Trust proposes to issue and sell to the
Underwriters 2,200,000 shares of __% Cumulative Trust Preferred Securities
having a Liquidation Amount of $25 per share (the "Trust Preferred Securities"),
to be issued under the Trust Agreement (as defined below), the terms of which
are more fully described in the Prospectus (as defined below). Such 2,200,000
shares of Trust Preferred Securities proposed to be sold by the Trust are
hereinafter referred to as the "Firm Shares." The Trust also proposes to grant
to the Underwriters an option to purchase up to 330,000 additional shares of
Trust Preferred Securities (the "Additional Shares") solely for the purpose of
covering overallotments, if any, if requested by the Underwriters as provided in
Section 3 hereof. The Firm Shares and the Additional Shares are herein
collectively called the "Shares."
The Offerors hereby confirm their agreements with the
Underwriters as follows:
2. Registration Statement and Prospectus. The Offerors have prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-_____) including a
prospectus, relating to the Shares, the __% Junior Subordinated Deferrable
Interest Debentures due 2028 of the Company (the "Debentures"), and the
Guarantee pursuant to the Guarantee Agreement (as defined below) for the benefit
of the Trust Preferred Securities (the "Guarantee"). To the extent the
registration statement has been amended, each such amendment has been prepared
and filed with the Commission. The registration statement, as amended, at the
time when it became effective, and any registration statement filed with the
Commission pursuant to Rule 462(b) under the Act, at the time when it becomes
effective, including all financial schedules and exhibits thereto and all of the
information (if any) deemed to be part of the registration statements at the
time of effectiveness pursuant to Rule 430A under the Act ("Rule 430A"), is
hereinafter referred to as the "Registration Statement;" the prospectus in the
form first provided to the Underwriters by the Offerors for use in connection
with the offering and sale of the Shares (whether or not required to be filed
pursuant to Rule 424(b) under the Act ("Rule 424(b)")) are hereinafter referred
to as the "Prospectus," except that if any revised prospectus shall be provided
to the Underwriters by the Offerors for use in connection with the offering of
the Shares that differs from the Prospectus (whether or not any such revised
prospectus is required to be filed by the Offerors pursuant to Rule 424(b) under
the Act), the term "Prospectus" shall refer to the revised prospectus from and
after the time it is first provided to the Underwriters for such use. Each
preliminary prospectus included in the Registration Statement prior to the time
it became effective is herein referred to as a "Preliminary Prospectus."
3. Agreements to Sell and Purchase. On the basis of the representations
and warranties contained in this Agreement, and subject to the terms and
conditions hereof: (i) the Offerors agree that the Trust will issue and sell to
the Underwriters, at a price of $25 per Share (the "Purchase Price"), 2,200,000
newly issued Firm Shares; and (ii) each Underwriter agrees, severally and not
jointly, to purchase from the Trust, at the Purchase Price, the aggregate number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto.
On the basis of the representations and warranties contained
in this Agreement, and subject to the terms and conditions hereof: (i) the
Offerors agree that the Trust will issue and sell to the Underwriters, at the
Purchase Price, up to 530,000 newly issued Additional Shares; and (ii) the
Underwriters shall have the right from time to time (subject to the last
sentence of Section 4(b)) to purchase from the Trust, at the Purchase Price, up
to the aggregate number of Additional Shares. Additional Shares may be purchased
as provided in Section 4 hereof solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares. If any
Additional Shares are to be purchased, each Underwriter, severally and not
jointly, agrees to purchase the number of Additional Shares (subject to such
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adjustments to eliminate fractional shares as the Representatives may determine)
that bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Shares
(together with the entire proceeds from the sale by the Trust to the Company of
the Common Securities (as defined below)) will be used to purchase the
Debentures, the Company hereby agrees to pay by wire transfer of same day funds
on the Closing Date, directly to the Underwriters, a commission of $______ per
Share purchased by the Underwriters and delivered by the Trust pursuant to this
Agreement (the "Underwriting Commission").
Each of the Offerors covenants and agrees that it will not
(other than in connection with the transactions expressly contemplated by this
Agreement), directly or indirectly, for a period of 180 days after the date of
the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise issue any shares of Trust Preferred
Securities, or any securities convertible into or exercisable or exchangeable
for Trust Preferred Securities or debentures, or any equity securities
substantially similar to the Trust Preferred Securities or any debt securities
substantially similar to the Debentures, or (2) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of any shares of Trust Preferred Securities or the Debentures,
whether any such transaction described in clauses (1) or (2) above is to be
settled by delivery of shares of Trust Preferred Securities or other securities,
in cash or otherwise, or (3) file any registration statement relating to any of
the foregoing on behalf of itself or any other person, in each case without the
prior written consent of EVEREN Securities, Inc. on behalf of the Underwriters.
4. Agreements of the Company as to Delivery and Payment. The Offerors
agree with each Underwriter that:
(a) Delivery to the Underwriters of and payment for the Firm
Shares shall be made at 10:00 A.M., New York City time, on the third
full business day (such time and date being referred to as the "Closing
Date") following the date of the public offering of the Firm Shares as
advised to the Representatives by the Offerors, at such place as the
Representatives shall designate.
(b) Delivery to the Underwriters of and payment for any
Additional Shares to be purchased by the Underwriters shall be made at
such place as the Representatives shall designate, at 10:00 A.M., New
York City time, on such date or dates (individually, an "Option Closing
Date" and collectively, the "Option Closing Dates"), which may be the
same as the Closing Date but shall in no event be earlier than the
Closing Date, as shall be specified in a written notice from the
Representatives to the Offerors of the Underwriters' determination to
purchase a number, specified in said notice, of Additional Shares. Any
such notice may be given at any time prior to the thirty-first (31st)
day after the date of this Agreement. Any Option Closing Date shall be
within five (5) business days of the date of the applicable notice.
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(c) Unless otherwise agreed, the Shares to be purchased by
each Underwriter in book-entry form and in authorized denominations and
registered in the name of the nominee of The Depository Trust Company
("DTC") shall be delivered by or on behalf of the Offerors through the
facilities of DTC for the account of such Underwriter, against payment
of the Purchase Price therefor by wire transfer of same day funds to
the Trust, or upon its order, to an account designated by the Trust,
with any transfer taxes payable upon initial issuance or the transfer
thereof duly paid by the Offerors for the respective accounts of the
Underwriters.
5. Further Agreements of the Offerors. Each of the Offerors also agrees
with each Underwriter that:
(a) it will, if the Registration Statement has not heretofore
become effective under the Act, file an amendment to the Registration
Statement or, if necessary pursuant to Rule 430A under the Act, a
post-effective amendment to the Registration Statement, as soon as
practicable after the execution and delivery of this Agreement, and
will use its best efforts to cause the Registration Statement or such
post-effective amendment to become effective at the earliest possible
time; and the Offerors will comply fully and in a timely manner with
the applicable provisions of Rule 424(b), Rule 430A and the other rules
under the Act;
(b) it will advise the Underwriters promptly (i) when the
Registration Statement has become effective, if and when the Prospectus
is sent for filing pursuant to Rule 424 under the Act and when any
post-effective amendment to the Registration Statement becomes
effective, (ii) of the receipt of any comments or correspondence from
the Commission that relate to the Registration Statement or requests by
the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or, to the best knowledge of the Offerors, of the threat
or initiation of any proceedings for such purpose by the Commission or
any state securities commission or other regulatory authority, and (iv)
of the happening of any event or information becoming known during the
period referred to in paragraph (e) below that makes any statement of a
material fact made in the Registration Statement untrue or that
requires the making of any additions to or changes in the Registration
Statement (as amended or supplemented from time to time) in order to
make the statements therein not misleading or that makes any statement
of a material fact made in the Prospectus (as amended or supplemented
from time to time) untrue or that requires the making of any additions
to or changes in the Prospectus (as amended or supplemented from time
to time) in order to make the statements therein, not misleading; if at
any time the Commission shall issue or institute proceedings (or
threaten to institute any such proceedings) to issue any stop order
suspending the effectiveness of the Registration Statement, or any
state securities commission or other regulatory authority shall issue
or institute proceedings (or threaten to institute proceedings) to
issue an order suspending the qualification or exemption of the Shares
under any state securities or Blue Sky laws, the Offerors shall use
their best efforts to obtain the withdrawal or lifting of such order at
the earliest possible time;
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(c) it will furnish to the Representatives without charge
signed copies of the Registration Statement as first filed with the
Commission and of each amendment to it, including all exhibits filed
therewith, and will furnish to the Representatives such number of
conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as the Representatives may
reasonably request;
(d) it will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or make any amendment or supplement to the
Prospectus of which the Representatives shall not previously have been
advised and provided a copy a reasonable period of time prior to the
filing thereof and to which the Representatives or their counsel shall
reasonably object in writing; and it will prepare and file with the
Commission, promptly upon the Representatives' reasonable request, any
amendment to the Registration Statement or supplement to the Prospectus
that may be necessary or advisable in connection with the distribution
of the Shares by the Representatives in their or their counsel's
reasonable opinion, and will use its best efforts to cause the same to
become effective as promptly as possible;
(e) promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as a
prospectus is required by the Act to be delivered in connection with
the sales by an underwriter or a dealer (in the reasonable written
opinion of the Representatives' counsel, it being understood that no
opinion of the Representatives' counsel shall be necessary for
distribution of the Prospectus prior to or on the Closing Date), it
will furnish to each Underwriter and dealer without charge as many
copies of the Prospectus (and any amendment or supplement of the
Prospectus) as the Representatives may reasonably request for the
purposes contemplated by the Act; the Offerors consent to the use of
the Prospectus and any amendment or supplement thereto by any
Underwriter or any dealer, both in connection with the offering or sale
of the Shares and for such period of time thereafter as the Prospectus
is required by the Act to be delivered in connection therewith;
(f) if during the period specified in paragraph (e) any event
shall occur or information become known as a result of which in the
reasonable opinion of the Representatives' counsel it becomes necessary
to amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances existing as of the date the
Prospectus is delivered to a purchaser, not misleading, or it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and, subject to paragraph 5(d) above, it will file
with the Commission at the sole expense of the Offerors an appropriate
amendment or supplement to the Prospectus so that the statements of any
material facts in the Prospectus, as so amended and supplemented, will
not in light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with law and it will
furnish to the Representatives and to such Underwriters and dealers as
the Representatives shall specify, at the sole expense of the Offerors,
such number of copies thereof as the Representatives may reasonably
request;
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(g) prior to any public offering of the Shares, it will
cooperate with the Representatives and counsel for the Representatives
in connection with the registration or qualification of the Shares for
offer and sale by the several Underwriters and by dealers under the
state securities or Blue Sky laws of such jurisdictions as the
Representatives may request (provided, that the Offerors shall not be
obligated to qualify as a foreign corporation or business trust in any
jurisdiction in which it is not so qualified or to take any action
which would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject); the Offerors will
continue such qualification in effect so long as required by law for
the distribution of the Shares and will file such consents to service
of process or other documents as may be necessary in order to effect
such registration or qualification (provided, that the Offerors shall
not be obligated to take any action that would subject it to general
consent to service of process in any jurisdiction in which it is not
now so subject);
(h) it will promptly notify the Representatives if it incurs
any liability or obligation, direct or contingent, or enters into any
material transaction, other than in the ordinary course of business
prior to the exercise in full or termination or expiration of the
option to purchase the Additional Shares;
(i) it will not acquire any Trust Preferred Securities or any
capital stock of the Company prior to the exercise in full or
termination or expiration of the option to purchase the Additional
Shares nor will the Company declare or pay any dividend or make any
other distribution upon its common stock, $.001 par value per share
(the "Common Stock"), payable to stockholders of record on a date prior
to the exercise in full or termination or expiration of the option to
purchase the Additional Shares;
(j) the Offerors will mail and make generally available to the
Trust's stockholders and furnish to the Representatives as soon as
reasonably practicable a consolidated earnings statement covering a
period of at least 12 months beginning after the "effective date" (as
defined in Rule 158 under the Act) of the Registration Statement (but
in no event commencing later than 90 days after such date) that will
satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder;
(k) during the period of 12 months after the date of this
Agreement, it will furnish to the Representatives a copy (i) as soon as
practicable after the filing thereof, of each report filed by it with
the Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); (ii) as soon as practicable after
the release thereof, of each press release relating to the Offerors;
(iii) as soon as available, of each report of the Company mailed to the
Company's stockholders and each report of the Trust mailed to the
Trust's stockholders; and (iv) as soon as available, such other
publicly available information concerning the Offerors as the
Representatives may reasonably request;
(1) whether or not the transactions contemplated hereby are
consummated or this Agreement becomes effective as to all of its
provisions or is terminated, to pay all costs, fees, expenses and taxes
incident to the performance by the Offerors of their obligations
6
hereunder, including (i) the preparation, printing, filing and
distribution under the Act of the Registration Statement (including
financial statements and exhibits), each Preliminary Prospectus, the
Prospectus and all amendments and supplements to any of them prior to
or during the period specified in paragraph (e) above of this Section
5, (ii) the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of the several states,
including, in each case, the applicable filing fees and the fees and
actual out-of-pocket disbursements of counsel for the Underwriters in
connection with such registration or qualification and with the
preparation of the memoranda relating thereto, (iii) the filing fee of
the NASD in connection with its review of the terms of the offering and
the sale of the Shares, (iv) the approval for quotation of the Shares
on the American Stock Exchange, Inc. or other securities exchange, (v)
furnishing such copies of the Registration Statement, each Preliminary
Prospectus, the Prospectus and all amendments and supplements thereto
as may be requested by the Representatives for use in connection with
the offering or sale of the Shares by the Underwriters or by dealers to
whom the Shares may be sold, (vi) obtaining the opinions to be provided
pursuant to Section 8(g) of this Agreement, (vii) the fees and expenses
of the Property Trustee, the Delaware Trustee, the Guarantee Trustee
and the Indenture Trustee (each as defined below), including the fees
and disbursements of counsel for such trustees, (viii) the cost of
qualifying the Shares with DTC and (ix) the performance by the Offerors
of all of their other obligations under this Agreement; if the sale of
the Shares provided for herein is not consummated because the
Underwriters exercise their right to terminate this Agreement pursuant
to Section 9 hereof and any of the following have occurred during the
term of this Agreement: (a) there has been any material adverse change
in the condition (financial or otherwise), earnings, affairs, business
or prospects of the Company; or (b) the Offerors shall refuse or be
unable to comply with any provision hereof (except as the result of a
breach of this Agreement by the Underwriters), the Offerors will
promptly reimburse the Underwriters upon demand for all reasonable
out-of-pocket expenses (including the fees and actual out-of-pocket
disbursements of counsel for the Underwriters in connection with the
matters set forth solely in clause (ii) above) that shall have been
incurred by the Underwriters in connection with the proposed purchase
and sale of the Shares;
(m) it intends to use the net proceeds received by it from the
sale of the Shares being sold by the Trust in the manner specified in
the Prospectus;
(n) if, at the time of effectiveness of the Registration
Statement, any information shall have been omitted therefrom in
reliance upon Rule 430A, then immediately following the execution and
delivery of this Agreement, it will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A and Rule
424(b), copies of an amended prospectus, or, if required by such Rule
430A, a post-effective amendment to the Registration Statement
(including an amended prospectus), containing all information so
omitted;
(o) it will cause the Shares to be approved for quotation,
subject to notice of issuance or sale, on the American Stock Exchange,
Inc. or other securities exchange; it will comply with all
registration, filing and reporting requirements of the Securities
7
Exchange Act of 1934, as amended, (the "Exchange Act") American Stock
Exchange, Inc. or other securities exchange in connection with the sale
of the Shares; and
(p) it will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to
or after the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent required to be satisfied
under this Agreement prior to the delivery of the Shares.
6. Representations and Warranties.
(a) The Offerors, jointly and severally, represent and warrant
to each Underwriter that:
(i) the Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus
relating to the proposed offering of the Shares nor, to the
best of the Offerors' knowledge, instituted or threatened any
proceedings for that purpose. The Registration Statement, on
the date it became effective, and the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission (or if not filed, on the date provided by
the Offerors to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and
each Option Closing Date conformed or will conform with the
requirements of the Act and the rules and regulations
promulgated thereunder (the "Rules and Regulations") and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations promulgated thereunder
(the "Trust Indenture Regulations"); the Registration
Statement, on the date it became effective, did not contain an
untrue statement of material fact or omit to state 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; the Prospectus and any
amendment or supplement thereto, on the date of filing thereof
with the Commission (or if not filed, on the date provided by
the Offerors to the Underwriters in connection with the
offering and sale of the Shares) and at the Closing Date and
each Option Closing Date did not and will not include an
untrue statement of material fact or omit to state 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; the foregoing shall not apply
to statements in or omissions from the Registration Statement
and the Prospectus made or omitted in reliance upon, and in
conformity with information relating to the Underwriters
furnished to the Offerors by or on behalf of the Underwriters
expressly for use therein (the Offerors hereby acknowledge for
all purposes under this Agreement that (A) the last paragraph
set forth on the outside front cover page of the Prospectus,
(B) the stabilization legend set forth on the inside of the
front cover page of the Prospectus, (C) the statements set
forth under the caption "Underwriting" in the Prospectus and
(D) the statement set forth in the second sentence under the
caption "Legal Matters" in the Prospectus constitute the only
information furnished to the Offerors by or on behalf of the
Underwriters for use in the preparation of the Registration
Statement or the Prospectus or any amendment or supplement
thereto);
8
(ii) the only subsidiaries of the Company (other than
the Trust) are as set forth on Exhibit A to this Agreement
(singularly, a "Subsidiary" and collectively, the
"Subsidiaries"); the Company has been duly incorporated and is
a validly existing corporation in good standing under the laws
of Delaware, with full corporate power and authority to own or
lease its properties and assets and to conduct its business as
described in the Registration Statement and the Prospectus and
is duly qualified to do business in each jurisdiction in which
it owns or leases real property or in which the conduct of its
business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified
would not have a material adverse effect on the condition
(financial or otherwise), business, assets, prospects, net
worth or results of operations of the Company and its
Subsidiaries, taken as a whole (a "Material Adverse Effect,"
and, when used with respect to the Trust, "Material Adverse
Effect" means any a material adverse effect on the condition
(financial or otherwise), business, assets, prospects, net
worth or results of operations of the Trust); each Subsidiary
has been duly incorporated and is a validly existing
corporation in good standing under the laws of the
jurisdiction set forth opposite its name on Exhibit A, with
full corporate power and authority to own or lease its
properties and assets and to conduct its business as described
in the Registration Statement and the Prospectus and is duly
qualified to do business in each jurisdiction in which it owns
or leases real property or in which the conduct of its
business or the ownership or leasing of property requires such
qualification, except where the failure to be so qualified
would not have a Material Adverse Effect;
(iii) the trust has been duly formed and is a validly
existing business trust in good standing under the laws of
Delaware, with full power and authority to own or lease its
properties and assets and to conduct its business as described
in the Registration Statement and the Prospectus, including,
without limitation, to enter into this Agreement and the other
agreements or instruments contemplated hereby, to issue and
sell the Shares, to issue and sell the Common Securities and
to otherwise consummate the transactions contemplated hereby,
and is duly qualified to do business in each jurisdiction in
which it owns or leases real property or in which the conduct
of its business or the ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; the Trust
is a consolidated subsidiary of the Company and has no
subsidiaries of its own, the Trust is not a party to or bound
by any agreement or instrument other than the Trust Agreement,
this Agreement and the agreements and instruments contemplated
by the Trust Agreement and this Agreement and described in the
Registration Statement and the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by the Trust Agreement and this
Agreement and described in the Registration Statement and the
Prospectus; the Trust is not, and on the Closing Date will not
be, to the knowledge of the Offerors, classified as an
association taxable as a corporation for United States federal
income tax purposes; the Trust is, and on the Closing Date
will be, treated as a consolidated subsidiary of the Company
pursuant to generally accepted accounting principles;
9
(iv) the capitalization of the Company is, and upon
consummation of the transactions contemplated hereby and by
the Prospectus will be, as set forth in the Registration
Statement and the Prospectus under the caption
"Capitalization;" all of the outstanding shares of capital
stock of the Company have been duly authorized and are validly
issued, are fully paid and non-assessable and conform to the
description thereof in the Registration Statement and the
Prospectus and were not issued in violation of any preemptive
rights or other rights to subscribe for or purchase
securities; and, except as set forth in the Registration
Statement and the Prospectus with respect to the Company's
stock option plans and options, warrants or other rights to
acquire shares of Common Stock granted outside of the
Company's stock option plans, no options, warrants or other
rights to purchase from the Company, agreements or other
obligations of the Company to issue or other rights to convert
any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in the Company are
outstanding;
(v) subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, and except as described therein, (A) neither the
Trust, the Company nor any Subsidiary has incurred any
material liabilities or obligations, direct or contingent, or
entered into any material transactions not in the ordinary
course of business, (B) neither the Trust, the Company nor any
Subsidiary has purchased any of its outstanding capital stock
or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock or otherwise and
(C) there has not been any material adverse change in the
condition (financial or otherwise), business, affairs,
prospects or results of operations of the Trust or the Company
and its Subsidiaries, taken as a whole, or any material change
in the Trust's, the Company's or any Subsidiary's capital
stock, short-term debt or long-term debt;
(vi) the Shares to be sold by the Trust pursuant to
this Agreement have been duly and validly authorized and, when
issued, delivered and paid for pursuant to this Agreement,
will be validly issued, fully paid and nonassessable undivided
beneficial assets of the Trust and will be entitled to the
benefits of the Trust Agreement; the shares of __% Cumulative
Trust Common Securities having a Liquidation Amount of $25 per
share (the "Common Securities") to be sold by the Trust to the
Company have been duly and validly authorized and, when
issued, delivered and paid for, will be validly issued, fully
paid and nonassessable undivided beneficial assets of the
Trust and will be entitled to the benefits of the Trust
Agreement; the Shares and the Common Securities conform to the
descriptions thereof contained in the Registration Statement
and the Prospectus;
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(vii) Subject to the terms of the Trust Agreement,
holders of the Shares will be entitled to the same limitation
of personal liability under Delaware law as extended to
stockholders of private corporations for profit;
(viii) this Agreement has been duly authorized,
executed and delivered by the Trust and the Company and is a
legal, valid and binding agreement of the Trust and the
Company enforceable in accordance with its terms, except (i)
as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws;
(ix) each of the Administrative Trustees (as defined
below) of the Trust is an employee of the Company and has been
authorized by the Company to execute and deliver the Trust
Agreement (as amended and restated, the "Trust Agreement") by
and among the Company, as Depositor, Wilmington Trust Company
("WTC") as Delaware Trustee (the "Delaware Trustee"), WTC as
Property Trustee (the "Property Trustee") and ___________,
______________ and ____________ as Administrative Trustees
(the "Administrative Trustees"); the Trust Agreement has been
duly authorized by the Company, will be duly executed and
delivered by the Company, as Depositor, and the Administrative
Trustees on the Closing Date, and will be legal, valid and
binding agreements of the Company and the Administrative
Trustees enforceable in accordance with its terms, except (i)
as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws; the Trust Agreement
conforms in all material respects with the description thereof
and all statements relating thereto in the Registration
Statement and the Prospectus and has been qualified under the
Trust Indenture Act;
(x) the Indenture ("Indenture") by and between the
Company and WTC as Indenture Trustee (the "Indenture Trustee")
has been duly authorized by the Company, will be duly executed
and delivered by the Company on the Closing Date, and will be
a legal, valid and binding agreement of the Company
enforceable in accordance with its terms, except (i) as
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws; the Indenture
conforms in all material respects with the description thereof
and all statements relating thereto in the Registration
Statement and the Prospectus and has been qualified under the
Trust Indenture Act;
11
(xi) the Debentures have been duly authorized by the
Company, will be duly executed and delivered by the Company on
the Closing Date, and, when authenticated in the manner
provided for in the Indenture and delivered against payment
therefor as described in the Registration Statement and the
Prospectus, will be legal, valid and binding obligations of
the Company enforceable in accordance with its terms, except
(i) as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equity
principles and (ii) as rights to indemnity or contribution
hereunder may be limited by Federal or state securities laws
or the public policy underlying such laws, and will be
entitled to the benefits of the Indenture; the Debentures
conform in all material respects with the description thereof
and all statements relating thereto in the Registration
Statement and the Prospectus
(xii) the Guarantee Agreement (the "Guarantee
Agreement") by and between the Company and WTC, as Guarantee
Trustee (the "Guarantee Trustee") has been duly authorized by
the Company, will be duly executed and delivered by the
Company on the Closing Date, and will be legal, valid and
binding agreement of the Company enforceable in accordance
with its terms, except (i) as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally
and by general equity principles and (ii) as rights to
indemnity or contribution hereunder may be limited by Federal
or state securities laws or the public policy underlying such
laws; the Guarantee pursuant to the Guarantee Agreement and
related documents conforms in all material respects with the
description thereof and all statements relating thereto in the
Registration Statement and the Prospectus and the Trust,
pursuant to the Guarantee, has been qualified under the Trust
Indenture Act;
(xiii) the Expense Agreement (the "Expense
Agreement") by and between the Trust and the Company has been
duly authorized by the Trust and the Company, will be duly
executed and delivered by the Trust and the Company on the
Closing Date, and will be legal, valid and binding agreements
of the Trust and the Company enforceable in accordance with
its terms, except (i) as enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by
general equity principles and (ii) as rights to indemnity or
contribution hereunder may be limited by Federal or state
securities laws or the public policy underlying such laws; the
Expense Agreement conforms in all material respects with the
description thereof and all statements relating thereto in the
Registration Statement and the Prospectus;
(xiv) neither the Trust, the Company nor any
Subsidiary is in violation of its Certificate of Trust and
Trust Agreement, or its Certificate or Articles of
Incorporation or by-laws, as the case may be; neither the
Trust, the Company nor any Subsidiary is in violation of or in
breach of or in default in (nor has any event occurred that
12
with notice or lapse of time, or both, would be a breach of or
a default in) the performance of any obligation, agreement or
condition contained in any agreement, lease, contract, permit,
license, franchise agreement, mortgage, loan agreement,
debenture, note, deed of trust, bond, indenture or other
evidence of indebtedness or any other instrument or obligation
(collectively, "Obligations and Instruments") to which it is a
party or by which it or any of its properties or assets are
bound or affected, except for such violation, breach, default
as, either individually or in the aggregate, would not have a
Material Adverse Effect; neither the Trust, the Company nor
any Subsidiary is in violation of any statute, judgment,
decree, order, rule or regulation (collectively, "Laws")
applicable to it or any of its properties or assets that,
alone or together with other violations of Laws, would result
in a Material Adverse Effect;
(xv) the execution, delivery and performance of this
Agreement and delivery of the Shares by the Trust and
compliance by the Trust and the Company with all the
provisions hereof and the consummation of the transactions
contemplated hereby and as described in the Registration
Statement and the Prospectus will not, alone or upon notice or
the passage of time or both (A) require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body or third
party (except such as may be required under the Act and the
securities or Blue Sky laws of the various states or by the
NASD), (B) result in the creation or imposition of any
material lien, charge or encumbrance upon any of the
properties or assets of the Trust, the Company or any
Subsidiary pursuant to the terms and provisions of any
Obligation or Instrument, (C) conflict with or constitute a
breach or default under any Obligation or Instrument to which
the Trust, the Company or any Subsidiary is a party or by
which it or any of it properties or assets are bound, or (D)
assuming compliance with the Act and all applicable state
securities or Blue Sky laws violate or conflict with any Laws
applicable to the Trust, the Company or any Subsidiary or any
of its properties or assets, except, with respect to clauses
(B), (C) and (D) hereof, for such liens, charges,
encumbrances, conflicts, breaches, defaults or violations as
would not, either individually or in the aggregate, have a
Material Adverse Effect;
(xvi) except as set forth in the Registration
Statement and the Prospectus, there is no action, suit,
proceeding, inquiry or investigation, governmental or
otherwise before any court, arbitrator or governmental agency
or body (collectively, "Proceedings") pending to which the
Trust, the Company or any Subsidiary is a party or to which
any of its properties or assets are subject, that, if
determined adversely to the Trust, the Company or such
Subsidiary, could reasonably be expected to result in a
Material Adverse Effect, or that seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the
issuance or sale of any of the Shares to be sold hereunder or
the consummation of the transactions described in the
Registration Statement and the Prospectus and, to the best
knowledge of the Offerors, no such Proceedings are threatened
or contemplated; and there is no contract, document, agreement
13
or transaction to which the Trust, the Company or any
Subsidiary is a party, or that involved or involves the Trust,
the Company or any Subsidiary or any of its properties or
assets that is required to be described in or filed as an
exhibit to the Registration Statement by the Act or the Rules
and Regulations that has not been so described or filed; to
the best knowledge of the Offerors, no action has been taken
by any governmental agency that suspends the effectiveness of
the Registration Statement, prevents or suspends the use of
any Preliminary Prospectus or the Prospectus or suspends the
sale of the Shares in any jurisdiction referred to in Section
5(g) hereof; no injunction, restraining order or order of any
nature by a federal or state court of competent jurisdiction
has been issued with respect to the Trust, the Company or any
Subsidiary that might prevent the issuance of the Shares,
suspend the effectiveness of the Registration Statement,
prevent or suspend the use of any Preliminary Prospectus or
the Prospectus or suspend the sale of the Shares in any
jurisdiction referred to in Section 5(g) hereof; and every
request of the Commission, or any securities authority or
agency of any jurisdiction, for additional information (to be
included in the Registration Statement or the Prospectus or
otherwise) has been complied with in all material respects;
(xvii) Except as set forth in the Registration
Statement and the Prospectus, (1) neither the Company nor any
Subsidiary has violated any Federal or state law, statute,
ordinance, rule, regulation or common law, as the same may be
interpreted or administered by any Federal, state, regional,
county or local agencies, relating to (A) the protection,
investigation, remediation, or restoration of the environment
or natural resources, (B) the handling, use, storage,
treatment, disposal, release or threatened release of any
Hazardous Material (as defined below), or (C) pollution or
contamination ("Environmental Laws"), except for such
violations as would not, either individually or in the
aggregate, have a Material Adverse Effect, nor, to the
knowledge of the Company, are there any circumstances, either
past, present or that are reasonably foreseeable, that may
lead to such violation in the future that, in each case or in
the aggregate, could reasonably be expected to result in a
Material Adverse Effect; (2) no property owned or leased by
the Company or any Subsidiary is included or, to the best of
the knowledge of the Company, proposed for inclusion on the
National Priorities List promulgated under the Comprehensive
Environmental Response Compensation and Liability Act of 1980,
U.S.C. ss.9601 et seq.; (3) except for any asbestos containing
materials or lead-based paint that may be, or may have been
contained, on property, to the knowledge of the Company no
property currently, or in the past, owned or leased by the
Company or any Subsidiary contains, or contained, as the case
may by, any Hazardous Material that requires or required, as
the case may be, investigation or remediation under any
Environmental Law, except for such investigation or
remediation as would not, either individually or in the
aggregate, have a Material Adverse Effect; (4) neither the
Company nor any Subsidiary has caused or allowed the release
of any Hazardous Material on, in, under or from any property
currently or in the past owned or leased by the Company or any
Subsidiary, except for such releases as would not, either
individually or in the aggregate, have a Material Adverse
14
Effect; (5) neither the Company nor any Subsidiary has
received any notice of a claim under or pursuant to any
Environmental Law relating to any Hazardous Material on or
originating from any property currently or in the past owned
or leased by the Company or any Subsidiary, except for such
claims as would not, either individually or in the aggregate,
have a Material Adverse Effect; (6) there are no underground
storage tanks located on or under any property currently owned
or leased by the Company or any Subsidiary at their current
facilities; "Hazardous Material" means any substance,
material, or waste that is (A) listed, classified or regulated
as a hazardous substance or waste in any concentration
pursuant to any Environmental Law, or (B) any other substance,
material, or waste which may be the subject of regulatory
action by any governmental entity pursuant to any
Environmental Law;
(xviii) Except as set forth in the Registration
Statement and the Prospectus, the Trust, the Company and each
Subsidiary has such permits, licenses, registrations,
franchises and authorizations of governmental or regulatory
authorities or third parties ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are
necessary to own, lease and operate its properties and assets
and to conduct its businesses or operations, except where the
failure to have any such Permit would not have a Material
Adverse Effect; the Trust, the Company and each Subsidiary are
in compliance with such Permits, except where to failure to
comply with such Permits would not, either individually or in
the aggregate, have a Material Adverse Effect, and no event
has occurred that allows, or after notice or lapse of time, or
both would allow, revocation or termination thereof or result
in any other material impairment of the rights of the holder
of any such Permits;
(xix) Neither the Company nor any Subsidiary has
violated any foreign, Federal, state, or local law relating to
discrimination in the hiring, promotion or pay of employees,
or any applicable foreign, Federal or state wages and hours
laws, or any provisions of the Employee Retirement Income
Security Act of 1974, as amended, or the rules and regulations
promulgated thereunder or similar foreign laws, that, in each
case or in the aggregate, might result in a Material Adverse
Effect;
(xx) Neither the Trust, the Company nor any
Subsidiary is, or intends to conduct its business in a manner
in which it would become, an "investment company" or a company
"controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
(xxi) except as otherwise set forth in the
Registration Statement and the Prospectus, the Company and
each Subsidiary has good and marketable title, free and clear
of all liens, claims, encumbrances and restrictions (except
liens for taxes not yet due and payable) to all property and
assets described in the Registration Statement as being owned
by it, except for such liens, claims, encumbrances and
restrictions as would not have a Material Adverse Effect; all
15
leases to which the Company or any Subsidiary is a party are
subsisting, valid and binding obligation of the Company or
such Subsidiary and no default of the Company or the
Subsidiary or, to the best knowledge of the Company, any other
person has occurred or is continuing thereunder that might
result in a Material Adverse Effect; and the Company and each
Subsidiary enjoys peaceful and undisturbed possession under
all such leases to which the Company or the Subsidiary is a
party as lessee with such exceptions as do not materially
interfere with the use made thereof by the Company or the
Subsidiary;
(xxii) the Company and each Subsidiary is insured by
insurers of recognized financial responsibility against such
losses and risks and in such amounts as is reasonable and
prudent for the business in which it is engaged;
(xxiii) BDO Xxxxxxx, LLP, the accounting firm that
has audited the required annual financial statements and
supporting schedules filed or to be filed with the Commission
as part of the Registration Statement and the Prospectus, is
an independent public accounting firm with respect to the
Trust and the Company as required by the Act;
(xxiv) the consolidated financial statements of the
Company, together with related notes and schedules of the
Company included in the Registration Statement and the
Prospectus, are accurate and present fairly the financial
position, results of operations and cash flows of the Company
as consolidated with its Subsidiaries at the indicated dates
and for the indicated periods; such financial statements have
been prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the
periods involved, and all adjustments necessary for a fair
presentation of results for such periods have been made and
any unaudited financial statements have been prepared on a
basis substantially consistent with that of the audited
operating financial statements included in the Registration
Statement and the Prospectus; and the summary and selected
financial and operating data included in the Registration
Statement and the Prospectus presents fairly the information
shown therein and have been prepared on a basis consistent
with the audited and any unaudited financial statements, as
the case may be, included therein; and the pro forma
information included in the Registration Statement and the
Prospectus present fairly the information shown therein, have
been prepared in accordance with GAAP and the Commission's
rules and guidelines with respect to pro forma financial
statements and other pro forma information, have been properly
prepared on the pro forma basis described therein;
(xxv) no holders of any security of the Company have
any rights to require inclusion of any such security in the
Registration Statement or, to the extent such rights exist,
(a) such rights have been waived or (b) the securities as to
which such rights exist are currently subject to an effective
registration statement under the Act; there are no preemptive
rights with respect to the offering being made by the
Prospectus or the Common Securities;
16
(xxvi) no labor dispute with the employees of the
Company or any Subsidiary exists, or to the best knowledge of
the Offerors after due inquiry, is imminent, that could result
in a Material Adverse Effect; and neither the Company nor any
Subsidiary has received notice of any existing or imminent
labor disturbance by the employees of any of its principle
suppliers, customers, manufacturers or contractors that would
result in any Material Adverse Effect;
(xxvii) the Trust, the Company and each Subsidiary
has filed or caused to be filed, or has properly filed
extensions for, all foreign, federal, state and local income,
value added and franchise tax returns and has paid all taxes
and assessments shown thereon as due, except for such taxes
and assessments as are disclosed or adequately reserved
against and that are being contested in good faith by
appropriate proceedings, promptly instituted and diligently
conducted; all material tax liabilities are adequately
provided for on the books of the Company and each Subsidiary,
and there is no material tax deficiency that has been or might
be asserted against the Trust, the Company or any Subsidiary
that is not so provided for;
(xxviii) the Company and each Subsidiary owns or
possesses, or can acquire on reasonable terms, the patents,
patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and or
unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names
(collectively, "Patents and Proprietary Rights") currently
employed by it in connection with the business it now operates
except where the failure to so own, possess or acquire such
Patents and Proprietary Rights would not have a Material
Adverse Effect; and, except as disclosed in the Registration
Statement and Prospectus, neither the Company nor any
Subsidiary has received any notice and the Offerors are not
otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Patent or
Proprietary Rights that, if the subject of any unfavorable
decision, ruling or finding, singly or in the aggregate, could
result in a Material Adverse Effect;
(xxix) the Trust, the Company and each Subsidiary has
conducted, is conducting and intends to conduct its business
so as to comply in all material respects with applicable
federal, state, local and foreign government Laws, except
where the failure to comply would not have a Material Adverse
Effect; and except as set forth in the Registration Statement
and the Prospectus, neither the Trust, the Company nor any
Subsidiary is charged with or, to the Offerors' knowledge,
under investigation with respect to, any material violation of
any such Laws;
(xxx) neither the Trust, the Company nor any
Subsidiary has taken or will take, directly or indirectly, any
action designed to or which has constituted or that might
reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the
price of any security of the Trust or the Company to
facilitate the sale or resale of the Shares;
17
(xxxi) neither the Trust, the Company, any Subsidiary
nor, to the best knowledge of the Offerors, any employee or
agent of the Trust, the Company or any Subsidiary has made any
payment of funds of the Trust, the Company or the Subsidiary
or received or retained any funds in violation of any law,
rule or regulation (including, without limitation, the Foreign
Corrupt Practices Act) or of a character required to be
disclosed in the Prospectus; neither the Trust, the Company
nor any Subsidiary has, at any time during the past five
years, (1) made any unlawful contributions to any candidate
for any political office, or failed fully to disclose any
contribution in violation of law, or (2) made any unlawful
payment to state, federal or foreign government officer or
officers, or other person charged with similar public or
quasi-public duty;
(xxxii) no transaction has occurred between or among
the Trust, the Company or any Subsidiary and any of the
Trust's, the Company's or such Subsidiary's officers,
directors or trustees or any affiliate or affiliates of any
such officer, director or trustee that is required to be
described in and is not described in the Registration
Statement and the Prospectus;
(xxxiii) other than as provided to the Underwriters
under this Agreement, neither the Trust, the Company nor any
Subsidiary has incurred any liability for finder's or broker's
fees or agent's commissions in connection with the execution
and delivery of this Agreement, the offer and sale of the
Shares or the transactions hereby contemplated;
(xxxiv) the Trust, the Company and each Subsidiary
maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's
general or specific authorization, and (iv) the recorded
accountability for inventory is compared with the existing
inventory at reasonable intervals and appropriate action is
taken with respect to any differences;
(xxxv) the Offerors confirm as of the date hereof
that the Trust, the Company and each Subsidiary is in
compliance with all provisions of Section 1 of Florida
Statutes, Section 517.075, An Act Relating to Disclosure of
Doing Business with Cuba; the Offerors further agree that if
they or any Subsidiary commences engaging in business with the
government of Cuba or with any person or affiliate located in
Cuba after the date the Registration Statement becomes or has
become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"),
whichever date is later, the Trust and the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
18
(xxxvi) except as set forth in the Registration
Statement and the Prospectus, no Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends
to the Company, from making any other distribution on any 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.
(b) Any certificate signed by any trustee of the Trust or
officer of the Company and delivered to the Underwriters or to counsel
for the Underwriters shall be deemed a representation and warranty made
by the Trust or Company, as the case may be, to each Underwriter as to
the matters covered thereby and shall be deemed incorporated herein in
its entirety and shall be effective as if such representation and
warranty were made herein.
7. Indemnification.
(a) The Offerors agree, jointly and severally, to indemnify
and hold harmless each of the Underwriters and each person, if any, who
controls each of the Underwriters within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act (collectively the
Underwriters and each such person are sometimes referred to in this
Section 7 as the "indemnified parties") from and against any and all
losses, claims, damages, liabilities and judgments caused by, arising
out of, related to or based upon: (i) any inaccuracy of any
representation or warranty by the Offerors contained in Section 6
hereof; (ii) any failure of the Offerors to perform their respective
obligations hereunder or under law; or (iii) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (as amended or supplemented if the Offerors
shall have furnished any amendments or supplements thereto), including
the information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A, if applicable, or the
Prospectus or any Preliminary Prospectus or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the indemnification contained in this paragraph
with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter or any employee of such Underwriter) on account of any
such loss, liability, claim, damage or expense arising from the sale of
the Shares by such Underwriter to any person if a copy of the
Prospectus shall not have been sent to such person within the time
required by the Act and the Regulations, and the untrue statement or
alleged untrue statement or omission or alleged omission of a material
fact contained in such Preliminary Prospectus was corrected in the
Prospectus, as amended or supplemented, provided that the Offerors had
delivered the Prospectus, as amended or supplemented, to the several
Underwriters on a timely basis to permit such delivery or sending; and
provided further, that the Offerors shall not be liable in any such
case to the extent that such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission made or omitted
in reliance upon, and in conformity with, information relating to the
Underwriters furnished to the Offerors by or on behalf of the
Underwriters expressly for use therein (the Offerors hereby acknowledge
for all purposes under this Agreement that (A) the last paragraph set
19
forth on the outside front cover page of the Prospectus, (B) the
stabilization legend set forth on the inside of the front cover page of
the Prospectus, (C) the statements set forth under the caption
"Underwriting" in the Prospectus and (D) the statement set forth in the
second sentence under the caption "Legal Matters" in the Prospectus
constitute the only information furnished to the Offerors by or on
behalf of the Underwriters for use in the preparation of the
Registration Statement or the Prospectus or any amendment or supplement
thereto).
(b) In case any action shall be brought against any of the
indemnified parties, based upon any Preliminary Prospectus, the
Registration Statement or the Prospectus or any amendment or supplement
thereto, or otherwise, and with respect to which indemnity may be
sought against the Offerors, such indemnified parties shall promptly
notify the Offerors in writing (but the failure so to notify shall not
relieve the Offerors of any liability that it may otherwise have to
such indemnified parties under this Section 7, although the Offerors'
liability to an indemnified party may be reduced on a monetary basis to
the extent, but only to the extent, it has been prejudiced by such
failure on the part of such indemnified party), and the Offerors shall
promptly assume the defense thereof, including the employment of
counsel reasonably satisfactory to such indemnified party and payment
of all fees and expenses. The indemnified parties shall each have the
right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be
at the expense of such indemnified parties unless (i) the employment of
such counsel shall have been specifically authorized by the Offerors,
(ii) the Offerors shall have failed to assume promptly the defense or
(iii) the named parties to any such action (including any impleaded
parties) include both the indemnified parties and the Offerors, and an
indemnified party shall have been advised by counsel that there may be
a conflict of interest between the indemnified parties, on the one
hand, and the Offerors, on the other hand, (in which case the Offerors
shall not have the right to assume the defense of such action on behalf
of such indemnified party, it being understood, however, that the
Offerors shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for the indemnified parties, which
firm shall be designated in writing by EVEREN Securities, Inc., and
that all such fees and expenses shall be reimbursed promptly as they
are incurred). The Offerors shall not be liable for any settlement of
any such action effected without their written consent, which consent
shall not be unreasonably withheld, but if settled with the written
consent of the Offerors, the Offerors agree to indemnify and hold
harmless the indemnified parties from and against any and all loss or
liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested the
Offerors to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, the
Offerors agree that they shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 15 business days after delivery by registered
or certified mail to the proper address for notice to the Offerors of
the aforesaid request (whether or not such delivery is accepted) and
(ii) the Offerors shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. The
20
Offerors shall not, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional and
complete release in writing of such indemnified party from any and all
liability on claims that are the subject matter of such proceeding,
which settlement shall be in form and substance reasonably satisfactory
to the indemnified party. The indemnification provided in this Section
7 will be in addition to any liability which the Offerors may otherwise
have.
(c) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless each of the Offerors, its directors,
officers or trustees who sign the Registration Statement and any person
controlling the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the indemnity
provided in Section 7(a) above from the Offerors to the Underwriters,
but only with reference to information stated in or omitted from the
Registration Statement, the Prospectus or any Preliminary Prospectus in
reliance upon, and in conformity with, information relating to the
Underwriters furnished in writing to the Offerors by or on behalf of
the Underwriters expressly for use therein; the Offerors hereby
acknowledge for all purposes under this Agreement that (A) the last
paragraph set forth on the outside front cover page of the Prospectus,
(B) the stabilization legend set forth on the inside of the front cover
page of the Prospectus, (C) the statements set forth under the caption
"Underwriting" in the Prospectus and (D) the statement set forth in the
second sentence under the caption "Legal Matters" in the Prospectus
constitute the only information furnished to the Offerors by or on
behalf of the Underwriters for use in the preparation of the
Registration Statement or the Prospectus or any amendment or supplement
thereto. In case any action shall be brought against the Offerors, any
of the Offerors' directors, any such officers or any person controlling
the Offerors based on the Registration Statement, the Prospectus or any
Preliminary Prospectus and in respect of which indemnity may be sought
against the Underwriters, the Underwriters shall have the rights and
duties given to the Offerors by Section 7(b) hereof (except that if the
Offerors shall have assumed the defense thereof, such Underwriter shall
not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), and the Offerors,
their directors, any such officers and any person controlling the
Officers shall have the rights and duties given to the "indemnified
parties" by Section 7(b) hereof.
(d) The Company agrees to indemnify and hold harmless the
Trust, its directors, officers or trustees who sign the Registration
Statement and any person controlling the Trust within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the indemnity provided in Section 7(a) above from the
Offerors to the Underwriters.
(e) If the indemnification provided for in this Section 7 is
for any reason unavailable to an indemnified party or insufficient to
hold such indemnified party harmless in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party,
21
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities and
judgments (i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Securities or (ii)
if the allocation provided in 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 Offerors on the one hand and the Underwriters on
the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering and sale of
the Shares (before deducting expenses) received by the Offerors on the
one hand, and the total underwriting discounts and commissions received
by the Underwriters on the other, bears to the total price to the
public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Offerors and
the Underwriters shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or the alleged omission to state a material fact
relates to information supplied by the Offerors or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7(e) 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 the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount of underwriting commissions received by
such Underwriter in connection with the Shares underwritten by it and
distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligation in this
Section 7(e) to contribute are several in proportion to the respective
amount of Shares purchased hereunder by each Underwriter and not joint.
8. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Shares on the
Closing Date and the Additional Shares on any Option Closing Date are subject to
the fulfillment of each of the following conditions on or prior to the Closing
Date and each Option Closing Date:
(a) All the representations and warranties of the Offerors
contained in this Agreement and in any certificate delivered hereunder
shall be true and correct on the Closing Date and each Option Closing
22
Date with the same force and effect as if made on and as of the Closing
Date or Option Closing Date, as applicable. The Offerors shall not have
failed at or prior to the Closing Date or Option Closing Date, as
applicable, to perform or comply in all material respects with any of
the agreements herein contained and required to be performed or
complied with by the Offerors at or prior to the Closing Date or the
Option Closing Date, as applicable.
(b) If the Registration Statement is not effective at the time
of the execution and delivery of this Agreement, the Registration
Statement shall have become effective (or, if a post-effective
amendment is required to be filed pursuant to Rule 430A under the Act,
such post-effective amendment shall have become effective) not later
than 9:30 A.M., New York City time, on the date of this Agreement or
such later time as the Representatives may approve in writing or, if
the Registration Statement has been declared effective prior to the
execution and delivery hereof in reliance on Rule 430A, the Prospectus
shall have been filed as required by the Act, if necessary; and at the
Closing Date and each applicable Option Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or, to the best knowledge of the
Underwriters or the Offerors, threatened by the Commission; every
request for additional information on the part of the Commission shall
have been complied with to the Underwriters' satisfaction; no stop
order suspending the sale of the Shares in any jurisdiction referred to
in Section 5(g) shall have been issued and no proceeding for that
purpose shall have been commenced or shall be pending or, to the best
knowledge of the Underwriters or the Offerors, threatened.
(c) The Shares shall have been qualified for sale under the
Blue Sky laws of such states as shall have been specified by the
Representatives.
(d) The legality and sufficiency of the authorization,
issuance and sale or transfer and sale of the Shares hereunder, the
validity and form of the certificates representing the Shares, the
execution and delivery of this Agreement and all corporate proceedings
and other legal matters incident thereto, and the form of the
Registration Statement and the Prospectus (except financial statements)
shall have been approved by counsel for the Underwriters exercising
reasonable judgment, and no Underwriter shall have advised the Offerors
that the Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains an untrue statement of material fact, or
omits to state a fact that in the Underwriters' opinion is material and
is required to be stated therein or is necessary to make the statements
therein not misleading.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred any material adverse change,
or any development involving a prospective material adverse change, in
or affecting particularly the business or properties of the Trust, the
Company or any Subsidiary, whether or not arising in the ordinary
course of business, that, in the reasonable judgment of the
Representatives, makes it impractical or inadvisable to proceed with
the public offering or purchase of the Shares as contemplated hereby.
23
(g) The Underwriters shall have received an opinion
(satisfactory to them and their counsel) dated the Closing Date or the
Option Closing Date, as the case may be, of Xxxxxx Xxxxxxxxxx LLP,
counsel for the Company, in form and substance satisfactory to the
Representatives and attached hereto as Exhibit B-1; the Underwriters
shall have received an opinion (satisfactory to them and their counsel)
dated the Closing Date or the Option Closing Date, as the case may be,
of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel for the Offorers,
in form and substance satisfactory to the Representatives and attached
hereto as Exhibit B-2; the Underwriters shall have received an opinion
(satisfactory to the Underwriters and their counsel) dated the Closing
Date or the Option Closing Date, as the case may be, of Xxxxx, Danzig,
Scherer, Xxxxxx & Xxxxxxxx LLP, special counsel for the Company, in
form and substance satisfactory to the Representatives and attached
hereto as Exhibit B-3; the Underwriters shall have received an opinion
(satisfactory to them and their counsel) dated the Closing Date or the
Option Closing Date, as the case may be, of Xxxxxxxx, Xxxxxx & Finger,
P.A., special counsel for the Property Trustee, the Indenture Trustee
and the Guarantee Trustee, in form and substance satisfactory to the
Representatives and attached hereto as Exhibit B-4.
(h) The Underwriters shall have received an opinion of Xxxxxx,
Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing
Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to the Representatives and attached hereto as
Exhibit C.
(i) The Underwriters shall have received, in connection with
the execution of this Agreement and on the Closing Date and each Option
Closing Date, a "cold comfort" letter from BDO Xxxxxxx, LLP, dated as
of each such date in form and substance satisfactory to the
Representatives with respect to the financial statements and certain
financial information and data contained in the Registration Statement
and the Prospectus.
(j) The Underwriters shall have received from the Company a
certificate, signed by Xxxxxx Xxxxxx and Xxxxxxx Xxxxxxx in their
capacities as the Chief Executive Officer, President and Treasurer and
the Chief Operating Officer of the Company, respectively, addressed to
the Underwriters and dated the Closing Date or Option Closing Date, as
applicable, to the effect that:
(i) such officer does not know of any Proceedings
instituted, threatened or contemplated against the Company or
any Subsidiary of a character required to be disclosed in the
Prospectus that are not so disclosed; such officer does not
know of any material contract required to be filed as an
exhibit to the Registration Statement which is not so filed;
(ii) such officer has carefully examined the
Registration Statement and the Prospectus and all amendments
or supplements thereto and, in such officer's opinion, such
Registration Statement or such amendment as of its effective
date and as of the Closing Date, and the Prospectus or such
supplement as of its date and as of the Closing Date, did not
contain an untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary in
24
order to make the statements therein not misleading and, in
such officer's opinion, since the effective date of the
Registration Statement, no event has occurred or information
become known that should have been set forth in an amendment
to the Registration Statement or a supplement to the
Prospectus which has not been so set forth in such amendment
or supplement;
(iii) the representations and warranties of the
Company set forth in Section 6 of this Agreement are true and
correct as of the date of this Agreement and as of the Closing
Date or the Option Closing Date, as the case may be, and the
Company has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date or the
Option Closing Date, as the case may be; and
(iv) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been
issued; and, to the best knowledge of the respective officers,
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty of
the Company as to the facts set forth in said certificate.
(k) The Underwriters shall have received from the Trust a
certificate, signed by each of the Administrative Trustees, addressed
to the Underwriters and dated the Closing Date or Option Closing Date,
as applicable, to the effect that:
(i) such trustee does not know of any Proceedings
instituted, threatened or contemplated against the Trust of a
character required to be disclosed in the Prospectus that are
not so disclosed; such trustee does not know of any material
contract required to be filed as an exhibit to the
Registration Statement which is not so filed;
(ii) such trustee has carefully examined the
Registration Statement and the Prospectus and all amendments
or supplements thereto and, in such trustee's opinion, such
Registration Statement or such amendment as of its effective
date and as of the Closing Date, and the Prospectus or such
supplement as of its date and as of the Closing Date, did not
contain an untrue statement of 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 and, in
such trustee's opinion, since the effective date of the
Registration Statement, no event has occurred or information
become known that should have been set forth in an amendment
to the Registration Statement or a supplement to the
Prospectus which has not been so set forth in such amendment
or supplement;
25
(iii) the representations and warranties of the Trust
set forth in Section 6 of this Agreement are true and correct
as of the date of this Agreement and as of the Closing Date or
the Option Closing Date, as the case may be, and the Trust has
complied in all material respects with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date or the Option
Closing Date, as the case may be; and
(iv) the Commission has not issued an order
preventing or suspending the use of the Prospectus or any
preliminary prospectus filed as a part of the Registration
Statement or any amendment thereto; no stop order suspending
the effectiveness of the Registration Statement has been
issued; and, to the best knowledge of the respective trustees,
no proceedings for that purpose have been instituted or are
pending or contemplated under the Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty of
the Offerors as to the facts set forth in said certificate.
(l) The Underwriters and Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel
for the Underwriters, shall have received on or before the Closing Date
or the Option Closing Date, as the case may be, such further documents,
opinions, certificates and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Offerors as the
Underwriters and they shall have reasonably requested from the
Offerors.
9. Effective Date of Agreement, Termination and Defaults. This
Agreement shall become effective upon, and shall not be deemed delivered until,
the later of (i) execution of this Agreement and (ii) when notification of the
effectiveness of the Registration Statement has been released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
and any exercise of the option to purchase Additional Shares may be canceled at
any time prior to any Option Closing Date by the Underwriters by written notice
to the Offerors if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or development involving a prospective
material adverse change in the condition, financial or otherwise, of the Trust
or the Company or the earnings, assets, liabilities, affairs, prospects,
management or business of the Trust or the Company, whether or not arising in
the ordinary course of business, that would, in the Representatives' sole
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States that, in
the Representatives' judgment, is material and adverse and would, in the
Representatives' judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (iii) the suspension or
material limitation of trading in securities on the New York Stock Exchange,
Inc., the American Stock Exchange, Inc., the Nasdaq SmallCap Market or the
Nasdaq Stock Market or limitation on prices for securities on either such
exchange, the Nasdaq SmallCap Market or the Nasdaq Stock Market, (iv) the
26
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
that in the Representatives' opinion materially and adversely affects, or will
materially and adversely affect, the business or operations of the Trust or the
Company, (v) the declaration of a banking moratorium by either federal or
Illinois or New York state authorities, (vi) the taking of any action by any
Federal, state or local government or agency in respect of its monetary or
fiscal affairs that in the Representatives' opinion has a material adverse
effect on the financial markets in the United States, (vii) there shall be any
change in financial markets or in political, economic or financial conditions
which, in the opinion of the Representatives, either renders it impracticable or
inadvisable to proceed with the offering and sale of the Shares on the terms set
forth in the Prospectus or materially adversely affects the market for the
Shares, or (vii) any conditions to the Underwriters' obligations shall not have
been fulfilled when and as required by this Agreement.
If on the Closing Date or on any Option Closing Date, as the
case may be, any of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it has agreed to purchase
hereunder on such date, and the aggregate number of Firm Shares or Additional
Shares, as the case may be, that such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase does not exceed, in the aggregate, 10%
of the total number of Shares that all Underwriters are obligated to purchase on
such date, each non-defaulting Underwriter shall be obligated, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule I hereto
bears to the total number of Firm Shares or Additional Shares, as the case may
be, that all the non-defaulting Underwriters have agreed to purchase, or in such
other proportion as the non-defaulting Underwriters may specify, to purchase the
Firm Shares or Additional Shares, as the case may be, that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the Closing Date or on the Option Closing Date, as the case may be,
any of the Underwriters shall fail or refuse to purchase the Firm Shares or
Additional Shares, as the case may be, in an amount that exceeds, in the
aggregate, 10% of the total number of the Shares, and arrangements satisfactory
to the non-defaulting Underwriters and the Offerors for the purchase of such
Shares are not made within 48 hours after such default, this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters and
the Offerors, except as otherwise provided in this Section 9. In any such case
that does not result in termination of this Agreement, either the
Representatives or the Company may postpone the Closing Date or the Option
Closing Date, as the case may be, for not longer than seven (7) days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve a defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
The indemnity and contribution provisions and other
agreements, representations and warranties of the Offerors and the Offerors'
officers, directors and trustees set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Shares, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any of the Underwriters or by
or on behalf of the Offerors or the officers or directors of the Offerors or any
controlling person of the Offerors, (ii) acceptance of the Shares and payment
therefor hereunder or (iii) termination of this Agreement. Notwithstanding any
termination of this Agreement, the Offerors shall be liable for and shall pay
all expenses they have agreed to pay pursuant to Section 5(l).
27
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of, and shall be binding upon, the Offers, the
Underwriters, any indemnified person referred to herein and their respective
successors and assigns, 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 terms "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
10. Effectiveness of Registration Statement. The Underwriters and the
Offerors will use their best efforts to cause the Registration Statement to
become effective, if it has not yet become effective, and to prevent the
issuance of any stop order suspending the effectiveness of the Registration
Statement and, if such stop order be issued, to obtain as soon as possible the
lifting thereof.
11. Miscellaneous. All communications hereunder will be in writing and,
if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to the Representatives c/o EVEREN Securities, Inc., 00 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Syndicate Department, with a
copy to Xxxxxx, Xxxx & Xxxxxxxx LLP, Xxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxx, Esq.; and if sent to the Offerors
will be mailed, delivered or telegraphed and confirmed to the Offerors at the
Company's corporate headquarters with a copy to Xxxxxx Xxxxxxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Esq.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
28
Please confirm that the foregoing correctly sets forth the agreement
among the Offerors and the several Underwriters, including the Representatives.
Very truly yours,
U.S. HOME & GARDEN INC.
By:__________________________________
Xxxxxx Xxxxxx
Chief Executive Officer, President
and Treasurer
Very truly yours,
U.S. HOME & GARDEN TRUST I
By:__________________________________
Xxxxxx Xxxxxx
Administrative Trustee
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
EVEREN SECURITIES, INC.
JOSEPHTHAL & CO. INC.
Acting as Representatives of the several Underwriters named in Schedule I.
By: EVEREN Securities, Inc.
By:__________________________________
Xxxx Xxxxxx
Senior Managing Director
29
Exhibit A
Name of Subsidiary State of Incorporation
------------------ ----------------------
Easy Gardener, Inc. Delaware
(100% owned by the Company)
Golden West Agri-Products, Inc. California
(100% owned by the Company)
Xxxxxxxxx Consumer Products Group, Inc. Delaware
(100% owned by Easy Gardener, Inc.)
Xxxxxxxxx Consumer Products, Inc. Delaware
(100% owned by Xxxxxxxxx Consumer Products Group, Inc.)
Weed Wizard Acquisition Corp. Delaware
(100% owned by Easy Gardener, Inc.)
Exhibit B-1 through B-4
Attached
Exhibit C
Attached
Exhibit D
Attached
Schedule I
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------------
EVEREN Securities, Inc. ................................
Josephthal & Co. Inc....................................
Total..........................................
