EXHIBIT 1.1
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▇▇▇▇▇▇ Rubbermaid Inc.
Underwriting Agreement
New York, New York
January 6, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Ladies and Gentlemen:
▇▇▇▇▇▇ Rubbermaid Inc., a corporation organized under the
laws of Delaware (the "Company"), proposes to sell to the several
underwriters named in Schedule II hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, the
number of shares of Common Stock, $1.00 par value ("Common Stock"), of
the Company set forth in Schedule I hereto (said shares to be issued
and sold by the Company being hereinafter called the "Underwritten
Securities"). The Company also proposes to grant to the Underwriters
an option to purchase up to the number of additional shares of Common
Stock set forth in Schedule II hereto to cover over-allotments (the
"Option Securities"; the Option Securities, together with the
Underwritten Securities, being hereinafter called the "Securities").
To the extent there are no additional Underwriters listed on Schedule
II other than you, the term Representatives as used herein shall mean
you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used herein are defined in
Section 17 hereof.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in
this Section 1.
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(a) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware with corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Final Prospectus and to enter into and
perform its obligations under this Agreement and the Securities;
and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing
would not have a material adverse effect on the condition
(financial or otherwise), or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise (a "Material Adverse Effect").
(b) Each subsidiary of the Company which is a
significant subsidiary as defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act (each a "Significant Subsidiary")
has been duly incorporated (or, in the case of a Significant
Subsidiary that is not a corporation, duly formed or organized,
as the case may be) and is validly existing as a corporation or
other legal entity, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation or
organization, has corporate or other, as the case may be, power
and authority to own, lease and operate its properties and to
conduct its business as described in the Final Prospectus and is
duly qualified as a foreign corporation or other legal entity, as
the case may be, to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be
in good standing would not have a Material Adverse Effect; and
all of the issued and outstanding capital stock, owned directly
or indirectly by the Company, of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and non-
assessable and is so owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.
(c) The Company meets the requirements for use of Form
S-3 under the Act and has prepared and filed with the Commission
a registration statement (the file number of which is set forth
in Schedule I hereto) on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and
sale of the Securities. The Company may have filed one or more
amendments thereto, including a Preliminary Final Prospectus,
each of which has previously been furnished to you. The Company
will next file with the Commission one of the following: (1)
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after the Effective Date of such registration statement, a final
prospectus supplement relating to the Securities in accordance
with Rules 430A and 424(b), (2) prior to the Effective Date of
such registration statement, an amendment to such registration
statement (including the form of final prospectus supplement) or
(3) a final prospectus in accordance with Rules 415 and 424(b).
In the case of clause (1), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in such registration
statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(d) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date
(as defined herein) and on any date on which Option Securities
are purchased, if such date is not the Closing Date (a
"settlement date"), the Final Prospectus (and any supplement to
the Final Prospectus) will, comply in all material respects with
the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to
Rule 424(b), will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date and any settlement date, the
Final Prospectus (together with any supplement to the Final
Prospectus) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the
Company makes no representations or warranties as to the
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information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement to the Final
Prospectus) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus
(or any supplement to the Final Prospectus).
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who certified certain
financial statements of the Company and its consolidated
subsidiaries, were, at the time of such certification,
independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder. Ernst & Young LLP, who will, for fiscal
year 2002, certify certain financial statements of the Company
and its consolidated subsidiaries, are independent public
accountants with respect to the Company within the meaning of the
Act and the applicable published rules and regulations
thereunder.
(f) The financial statements included or incorporated
by reference in the Registration Statement and the Final
Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as at the dates
indicated and the consolidated results of their operations for
the periods specified; except as otherwise stated in the
Registration Statement, said financial statements comply as to
form with the applicable accounting requirements of the Act and
have been prepared in conformity with generally accepted
accounting principles in the United States applied on a
consistent basis; and the supporting schedules included or
incorporated by reference in the Registration Statement and the
Final Prospectus present fairly the information required to be
stated therein. The selected financial data set forth under the
caption "Selected Financial Data" in the Final Prospectus and
Registration Statement fairly present, on the basis stated in the
Final Prospectus and the Registration Statement, the information
included therein.
(g) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(h) The authorized equity capitalization of the Company is
as set forth in the Final Prospectus; the capital stock of the
Company conforms in all material respects to the description
thereof contained in the Final Prospectus; the outstanding shares
of Common Stock have been duly and validly authorized and issued
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and are fully paid and nonassessable; the Securities have been
duly and validly authorized, and, when issued and delivered to
and paid for by the Underwriters pursuant to this Agreement, will
be fully paid and nonassessable; the Securities are duly listed,
and admitted and authorized for trading, subject to official
notice of issuance, on the New York Stock Exchange and the
Chicago Stock Exchange; the certificates for the Securities are
in valid and sufficient form; the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set
forth in the Final Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the
Company are outstanding.
(i) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus,
except as may otherwise be stated therein or contemplated
thereby, (i) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) there have been no transactions
entered into by the Company or any of its subsidiaries that are
material to the Company and its subsidiaries considered as one
enterprise, other than those in the ordinary course of business,
and (iii) except for regular dividends on the Company's Common
Stock or preferred stock in amounts per share that are consistent
with past practices or the applicable charter document or
supplement thereto, respectively, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(j) Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or bylaws or
comparable organizational documents or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
of its Significant Subsidiaries is subject, except when such
default would not have a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the
Securities, the compliance by the Company with its obligations
hereunder and thereunder and the consummation of the transactions
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contemplated herein, therein and in the Registration Statement
(including the issuance and sale of the Securities and the use of
proceeds from the sale of the Securities as described in the
Final Prospectus under the caption "Use of Proceeds"), will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any such subsidiary is
subject, nor will such action result in any violation of the
provisions of the charter or bylaws or comparable organizational
documents of the Company or any of its Significant Subsidiaries
or any law, administrative regulation or administrative or court
order or decree of any court or governmental agency, authority or
body or any arbitrator having jurisdiction over the Company or
any of its Significant Subsidiaries.
(k) The Company has not sustained a loss on account of
fire, flood, accident, terrorism or other calamity which
materially and adversely affects the business of the Company and
its subsidiaries taken as a whole as disclosed in the
Registration Statement and the Final Prospectus, regardless of
whether or not such loss shall have been insured.
(l) Except as set forth in the Registration Statement and
the Final Prospectus (exclusive of any supplement to the Final
Prospectus), there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries,
which will, in the opinion of the Company, result in any Material
Adverse Effect or will materially and adversely affect the
performance by the Company of its obligations under this
Agreement; and there are no contracts or documents of the Company
or any of its subsidiaries which are required to be filed or
incorporated by reference as exhibits to the Registration
Statement or the Final Prospectus by the Act which have not been
so filed or incorporated by reference.
(m) Except as would not, singly or in the aggregate, result
in a Material Adverse Effect, and other than as described or
incorporated by reference in the Final Prospectus, (i) neither
the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
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administrative order, consent decree or judgment, relating to
pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to
the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (ii) the Company
and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and
are each in compliance with their requirements, (iii) there are
no pending or, to the Company's or any of its subsidiaries'
knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigations or proceedings
relating to any Environmental Law against the Company or any of
its subsidiaries and (iv) there are no events or circumstances
that might reasonably be expected to form the basis of an order
for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to
Hazardous Materials or Environmental Laws.
(n) No authorization, approval, consent, order or decree of
any court or governmental agency or body including the Commission
is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with
the sale of the Securities hereunder, except such as have been
obtained or rendered, as the case may be, or as may be required
under state securities or "blue sky" laws.
(o) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not
be an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(p) The Securities, when countersigned by the transfer
agent, authenticated and delivered pursuant to the provisions of
this Agreement, will be excluded or exempted under the provisions
of the Commodity Exchange Act.
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(q) No holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement.
(r) Each of the Company and each of its Significant
Subsidiaries owns or leases all such properties as are necessary
to the conduct of its operations as presently conducted.
(s) The Company and its Significant Subsidiaries possess
all licenses, certificates, permits and other authorizations
issued by the appropriate Federal, state or foreign regulatory
authorities necessary to conduct their respective businesses,
except for such licenses, certificates, permits and other
authorizations that, the failure to hold, individually or in the
aggregate, would not have a Material Adverse Effect or except as
set forth in or contemplated in the Final Prospectus (exclusive
of any supplement to the Final Prospectus). Neither the Company
nor any such subsidiary has received any notice of proceedings
relating to the revocation or modification of any such license,
certificate, permit or authorization that, in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
to the Final Prospectus).
(t) The Company and each of its Significant Subsidiaries
maintain 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
generally accepted accounting principles 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 assets is compared with
the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) The Company has not taken, directly or indirectly, any
action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of
the Securities.
(v) Neither the Company nor any of its Significant
Subsidiaries nor, to the knowledge of the Company, any director,
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officer, agent, employee or affiliate of the Company or any of
its Significant Subsidiaries has taken any action, directly or
indirectly, that would result in a violation by such persons of
the Foreign Corrupt Practices Act of 1977, as amended, and the
rules and regulations promulgated thereunder ("FCPA"), including,
without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give,
or authorization of the giving of anything of value to any
"foreign official" (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA, other
than violations that, individually or in the aggregate, would not
have a Material Adverse Effect. The Company, its Significant
Subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their respective businesses in compliance with the
FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(w) The operations of the Company and its Significant
Subsidiaries are and have been conducted at all times in
compliance with applicable financial record keeping and reporting
requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency
(collectively, the "Money Laundering Laws"), and no action, suit
or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any
of its Significant Subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(x) Neither the Company nor any of its Significant
Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of
its Significant Subsidiaries is currently subject to any U.S.
penalties imposed by the Office of Foreign Assets Control of the
U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the issue and sale of
the Securities, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of
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any person currently subject to any U.S. penalties imposed by
OFAC.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2. PURCHASE AND SALE.
(a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set
forth, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from
the Company, at a purchase price of $30.00 per share, the amount
of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set
forth, the Company hereby grants an option to the several
Underwriters to purchase, severally and not jointly, up to
667,000 Option Securities at the same purchase price per share as
the Underwriters shall pay for the Underwritten Securities. Said
option may be exercised only to cover over-allotments in the sale
of the Underwritten Securities by the Underwriters. Said option
may be exercised in whole or in part at any time on or before the
30th day after the date of the Final Prospectus upon written or
telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which
the several Underwriters are exercising the option and the
settlement date. The number of shares of the Option Securities
to be purchased by each Underwriter shall be the same percentage
of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or
before the third Business Day prior to the Closing Date) shall be made
on the date and at the time specified in Schedule I hereto or at such
time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and
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time may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Underwritten Securities and
the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise
instruct.
If the option provided for in Section 2(b) hereof is
exercised after the third Business Day prior to the Closing Date, the
Company will deliver the Option Securities (at the expense of the
Company) to the Representatives, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, on the date specified by the
Representatives (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to an account
specified by the Company. If settlement for the Option Securities
occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and
the obligation of the Underwriters to purchase the Option Securities
shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. AGREEMENTS. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time,
and any amendment thereof, to become effective. Prior to the
termination of the offering of the Securities, the Company will
not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a
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copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing
of the Final Prospectus is otherwise required under Rule 424(b),
the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will
promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed
or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to the
Final Prospectus or for any additional information, (5) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding
for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event
occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify
the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of
this Section 5, an amendment or supplement which will correct
such statement or omission or effect such compliance and
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(3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and to each
other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of each Preliminary Final Prospectus and the Final Prospectus and
any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain
such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the
National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall
the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the
Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written
consent of Banc of America Securities LLC, offer, sell, contract
to sell, pledge or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any
person acting on behalf of the Company or any affiliate of the
Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act,
any other shares of Common Stock or any securities convertible
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into, or exercisable or exchangeable for, shares of Common Stock;
or publicly announce an intention to effect any such transaction,
in any such case until the Business Day set forth on Schedule I
hereto, PROVIDED, HOWEVER, that the Company may issue and sell
Common Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time and the Company may issue Common
Stock issuable upon the conversion of securities or the exercise
of warrants outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange
Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of
the Securities.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwritten
Securities and the Option Securities, as the case may be, shall be
subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to
the accuracy of the statements of the Company made in any certificates
furnished pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time on
the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time
on such date, or (ii) 9:30 AM on the Business Day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such
date; if filing of the Final Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, will be filed in the manner
and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Representatives shall have received the
following legal opinions, dated the Closing Date, and otherwise
15
in form and substance satisfactory to the Representatives, from
the General Counsel of the Company, to the effect that:
(i) Each Significant Subsidiary is validly existing as a
corporation or other legal entity, as the case may be, in
good standing under the laws of the jurisdiction of its
organization and, to the best of such counsel's knowledge,
each of the Company and each Significant Subsidiary is duly
qualified to transact business as a foreign corporation or
other legal entity, as the case may be, and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify or be in good standing would not have
a Material Adverse Effect.
(ii) Each Significant Subsidiary has the power and
authority to own, lease and operate its properties and to
conduct its business as currently conducted and as described
in the Final Prospectus.
(iii) All of the issued and outstanding capital stock of
each Significant Subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and, except
for directors' qualifying shares, if any, is owned directly
or indirectly by the Company, free and clear of any security
interest, whether or not perfected, lien, encumbrance or
claim.
(iv) To the best of such counsel's knowledge, there are no
legal or governmental proceedings before any court or
governmental agency, authority or body or any arbitrator
pending or threatened which are required to be disclosed in
the Final Prospectus, other than those disclosed therein.
(v) The execution and delivery by the Company of this
Agreement and the Securities, the performance by the Company
of its agreements herein and the issue and sale by the
Company of the Securities will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any
Significant Subsidiary under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any
Significant Subsidiary is a party or by which any of them
16
are bound or to which any property or assets of the Company
or any such Significant Subsidiary is subject.
(vi) The Company's authorized and outstanding equity
capitalization is as set forth in the Final Prospectus as of
the date or dates indicated herein; and the Securities
conform in all material respects to the description thereof
contained in the Final Prospectus.
(vii) No holders of securities of the Company have rights
to the registration of such securities under the
Registration Statement.
(viii) The capital stock of the Company conforms in all
material respects to the description thereof contained in
the Final Prospectus, and the outstanding shares of Common
Stock have been duly and validly authorized and issued and
are fully paid and nonassessable;
In addition, the General Counsel of the Company shall state
that nothing has come to the attention of such counsel that leads him
to believe that the Registration Statement (other than the financial
statements and related schedules and other financial information
included or incorporated by reference therein), at the time it became
effective (or, if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the
time of the most recent such filing, as the case may be) and at the
date hereof and at the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus (other than the
financial statements and related schedules and other financial
information included or incorporated by reference therein), at the
date hereof and at the Closing Date (included or) includes an untrue
statement of a material fact or (omitted or) omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the States of Delaware and Illinois or the Federal laws of the
United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem
17
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Representatives shall have received the following
legal opinions, dated the Closing Date, and otherwise in form and
substance satisfactory to the Representatives, from ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇, counsel for the Company, to the effect that:
(i) The Company and each Significant Subsidiary has been
duly incorporated (or, in the case of a Significant
Subsidiary that is not a corporation, duly formed or
organized, as the case may be) and is validly existing in
good standing under the laws of the jurisdiction of its
incorporation (or, if applicable, formation or
organization).
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business
as described in the Final Prospectus and to enter into and
perform its obligations under this Agreement.
(iii) The Company is duly qualified as a foreign
corporation to transact business and is in good standing
under the laws of the State of Illinois.
(iv) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(v) The information in the Final Prospectus under the
captions "Description of Debt Securities," "Particular Terms
of the Senior Debt Securities," "Particular Terms of the
Subordinated Debt Securities," "Description of Capital
Stock," "Description of Warrants" and "Description of Stock
Purchase Contracts and Stock Purchase Units" to the extent
that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has
been reviewed by such counsel and is correct in all material
respects.
(vi) The Registration Statement is effective under the Act
and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement
has been issued under the Act or proceedings therefor
initiated or threatened by the Commission; if filing of the
Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such
18
supplement, shall have been filed in the manner and within
the time period required by Rule 424(b).
(vii) At the time it became effective, the Registration
Statement (other than the financial statements and related
schedules and other financial information included or
incorporated by reference therein) complied as to form in
all material respects with the requirements of the Act.
(viii) The execution, delivery and performance by the
Company of this Agreement, the performance by the Company of
its agreements herein and the issue and sale by the Company
of the Securities will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Significant
Subsidiaries pursuant to, any Material Contract nor will
such action result in any violation of the provisions of the
charter or bylaws or comparable organizational documents of
the Company or any of its Significant Subsidiaries or any
law, administrative regulation or administrative or court
order or decree known to such counsel to be applicable to
the Company or any of its Significant Subsidiaries of any
court or governmental agency, authority or body or any
arbitrator having jurisdiction over the Company or any of
its Significant Subsidiaries. For purposes of the preceding
sentence, "Material Contract" shall mean each indenture,
loan agreement, contract, agreement or arrangement, as each
shall have been amended to the date of such opinion, filed
as an exhibit to, or incorporated by reference in, the most
recent Annual Report to the Commission on Form 10-K of the
Company or any report filed since the date of such report
with the Commission under Section 13 of the Exchange Act.
(ix) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be
described or referred to in the Registration Statement or
Final Prospectus or to be filed as exhibits thereto other
than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in
all material respects.
(x) No authorization, consent, approval, order or decree of
any court or governmental agency or body including the
Commission is required for the consummation by the Company
19
of the transactions contemplated by this Agreement or in
connection with the sale of the Securities hereunder, except
such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in
this Agreement and in the Final Prospectus and such
approvals (specified in such opinion) as have been obtained.
(xi) Each document filed pursuant to the Exchange Act and
incorporated by reference in the Final Prospectus (other
than the financial statements and related schedules and
other financial information included or incorporated by
reference therein) complied when filed or, if amended, when
so amended, as to form in all material respects with the
Exchange Act.
(xii) The Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid
and nonassessable; the certificates for the Securities are
in sufficient form to meet the requirements of the Delaware
General Corporation Law and listing requirements of the New
York Stock Exchange; and the holders of outstanding shares
of capital stock of the Company are not entitled to
statutory preemptive rights to subscribe for the Securities.
(xiii) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Prospectus,
will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
In addition, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ shall state that nothing
has come to the attention of such counsel that leads them to believe
that the Registration Statement (other than the financial statements
and related schedules and other financial information included or
incorporated by reference therein), at the time it became effective
(or, if an amendment to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement, then at
the time such amendment became effective or at the time of the most
recent such filing, as the case may be) and at the date hereof and at
the Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus (other than the financial
20
statements and related schedules and other financial information
included or incorporated by reference therein), at the date hereof and
at the Closing Date (included or) includes an untrue statement of a
material fact or (omitted or) omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the States of Delaware and Illinois or the Federal laws of the
United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(d) The Representatives shall have received from Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon
such matters.
(e) The Company shall have furnished to the Representatives
a certificate of the Company, signed by the chief financial
officer, principal accounting officer or treasurer of the
Company, dated the Closing Date, to the effect that the signers
of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date and
the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings
21
for that purpose have been instituted or, to the knowledge
of the Company, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Final Prospectus (exclusive of any supplement thereto),
there has been no event or events having a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as
set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused Ernst &
Young LLP to have furnished to the Representatives, at the
Execution Time and at the Closing Date, letters (which may refer
to letters previously delivered to one or more of the
Representatives), dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the
Commission thereunder and that they have performed a review of
the unaudited interim financial information of the Company for
the nine-month period ended September 30, 2002, and as of
September 30, 2002, substantially in the form attached as
Appendix A.
(g) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 6 or (ii)
any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement
thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration
22
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(i) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Act) or any notice given of any intended or potential decrease in
any such rating or of a possible change in any such rating that
does not indicate the direction of the possible change; PROVIDED,
HOWEVER, that the removal of the Company's rating from review and
the announcement of negative outlook by Moodys Investors Services
shall not be deemed a failure to fulfill this condition.
(j) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange and the
Chicago Stock Exchange, and satisfactory evidence of such actions
shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished
to the Representatives a letter substantially in the form of
Exhibit A hereto from each of the Named Executive Officers (as
such term is defined in Item 402(a)(3) of Regulation S-K), other
than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, addressed to the Representatives.
If any of the conditions specified in this Section 6 shall
not have been fulfilled when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6
shall be delivered at the office of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇,
counsel for the Underwriters, at Bank One Plaza, 10 South Dearborn
Street, Chicago, Illinois, on the Closing Date.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Securities provided for herein is not consummated because any
23
condition to the obligations of the Underwriters set forth in Section
6 hereof is not satisfied, because of any termination pursuant to
clause (i) of Section 10 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default
by any of the Underwriters, the Company will reimburse the
Underwriters severally through Banc of America Securities LLC on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of
each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company
will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors,
24
each of its officers who signs the Registration Statement, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page
regarding delivery of the Securities and, under the heading
"Underwriting" or "Plan of Distribution", (i) the list of
Underwriters and their respective participation in the sale of
the Securities, (ii) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids, in any
Preliminary Final Prospectus and the Final Prospectus constitute
the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final
Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless
and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); PROVIDED, HOWEVER, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs
25
and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party; PROVIDED, HOWEVER, that in no
event shall the indemnifying party be liable for the expenses of
more than one separate counsel (plus any local counsel)
representing the indemnified parties who are parties to such
action. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company
and the Underwriters severally agree to contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which
the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities;
PROVIDED, HOWEVER, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating
to the offering of the Securities) be responsible for any amount
in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters
26
severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the
Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth
on the cover page of the Final Prospectus. Relative fault shall
be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The
Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), 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. For
purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Underwriter or Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
27
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in
the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all
the Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days,
as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter
of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination
in the absolute discretion of the Representatives, by notice given to
the Company prior to delivery of and payment for the Securities, if at
any time prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the New York Stock
Exchange or Chicago Stock Exchange, (ii) trading in securities
generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such
Exchange, (iii) a banking moratorium shall have been declared either
by Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or
crisis the effect of which on financial markets is such as to make it,
in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Final Prospectus (exclusive of any supplement
thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or any of the officers, directors,
employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
28
12. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telefaxed to the Banc of America
Securities LLC General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed
to the General Counsel, Banc of America Securities LLC, at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to it
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, attention
of the Legal Department.
13. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons
referred to in Section 8 hereof, and no other person will have any
right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of
New York.
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Effective Date including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange Commission.
29
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement
is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating
to the Securities that was first filed pursuant to Rule 424(b) after
the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto or any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A", "Rule 462" and "Regulation
S-K" refer to such rules and regulations under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement
referred to in Section 1(a) hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
▇▇▇▇▇▇ Rubbermaid Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President -
Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Banc of America Securities LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director, Syndicate
SCHEDULE I
Underwriting Agreement dated January 6, 2003
Registration Statement No. 333-88050
Representative(s): Banc of America Securities LLC
Title, Purchase Price and Description of Securities:
Title: Common Stock
Number of Shares to be sold by the Company: 6,670,000
Price to Public per Share (include accrued dividends, if any):
$30.10
Price to Public -- total: $200,767,000
Underwriting Discount per Share: $0.10
Underwriting Discount -- total: $667,000
Proceeds to Company per Share: $30.00
Proceeds to Company -- total: $200,100,000
Other provisions: None
Closing Date, Time and Location: January 10, 2003 at 10:00 a.m. at
the offices of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ in Chicago, Illinois
Type of Offering: Non-Delayed
Date referred to in Section 5(f) after which the Company may offer or
sell securities issued or guaranteed by the Company without the
consent of the Representative(s): February 5, 2003
Modification of items to be covered by the letter from Ernst & Young
LLP delivered pursuant to Section 6(f) at the Execution Time: None
SCHEDULE II
NUMBER OF UNDERWRITTEN
SECURITIES TO BE NUMBER OF OPTION
UNDERWRITER PURCHASED SECURITIES
Banc of America Securities LLC 6,670,000 667,000
Total 6,670,000 667,000
=========================================
EXHIBIT A
[Letterhead of officer of ▇▇▇▇▇▇ Rubbermaid Inc.]
▇▇▇▇▇▇ Rubbermaid Inc.
PUBLIC OFFERING OF COMMON STOCK
January 6 ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"),
between ▇▇▇▇▇▇ Rubbermaid Inc., a Delaware corporation (the
"Company"), and you as representatives of a group of Underwriters
named therein, relating to an underwritten public offering of Common
Stock, $1.00 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the
prior written consent of Banc of America Securities LLC, offer, sell,
contract to sell, pledge or otherwise dispose of, (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in
privity with the undersigned or any affiliate of the undersigned),
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within
the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder with respect to, any shares of
capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly
announce an intention to effect any such transaction, for a period of
30 days after the date of the Underwriting Agreement, other than
shares of Common Stock disposed of as bona fide gifts approved by Banc
of America Securities LLC.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting
Agreement), the agreement set forth above shall likewise be
terminated.
Yours very truly,
[SIGNATURE OF OFFICER]
[NAME AND ADDRESS OF OFFICER]
