1
Exhibit 1.3
KENNAMETAL INC.
(A PENNSYLVANIA CORPORATION)
KENNAMETAL FINANCING I
(A DELAWARE BUSINESS TRUST)
4,500,000 FELINE PRIDES(SM)
PURCHASE AGREEMENT
DATED: JANUARY , 1998
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KENNAMETAL INC.
(A PENNSYLVANIA CORPORATION)
KENNAMETAL FINANCING I
(A DELAWARE BUSINESS TRUST)
FELINE PRIDES*
(STATED AMOUNT OF $50 PER FELINE PRIDES)
EACH CONSISTING OF
A PURCHASE CONTRACT OF KENNAMETAL INC. REQUIRING THE
PURCHASE ON FEBRUARY 16, 2001
OF CERTAIN SHARES OF CAPITAL STOCK OF
KENNAMETAL INC.
AND
A % TRUST ORIGINATED PREFERRED SECURITY
OF KENNAMETAL FINANCING I
PURCHASE AGREEMENT
January , 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx, Sachs & Co.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Kennametal Inc., a Pennsylvania corporation (the "Company"),
and Kennametal Financing I, a Delaware statutory business trust (the "Trust"
and, together with the Company, the "Offerors"), confirm their agreement with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
--------
* "FELINE PRIDES," "INCOME PRIDES," AND "GROWTH PRIDES" ARE SERVICE
MARKS OF XXXXXXX XXXXX & CO., INC.
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Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other Underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any Underwriter substituted as hereinafter provided in Section 10
hereof), for whom Xxxxxxx Xxxxx and Xxxxxxx, Xxxxx & Co. are acting as
representatives (in such capacity, the "Representatives") with respect to the
issue and sale by the Offerors and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of FELINE PRIDES(sm), each
of which will initially consist of a unit (referred to as Income PRIDES(sm) with
a Stated Amount of $50 comprised of (a) a stock purchase contract (the "Purchase
Contract") under which (i) the holder will purchase from the Company on February
16, 2001, a number of shares of capital stock, par value $1.25 per share, of the
Company (the "Common Stock"), equal to the Settlement Rate as set forth in the
Purchase Contract Agreement (defined below) and (ii) the Company will pay to the
holder unsecured, subordinated contract adjustment payments, if any, and (b)
either beneficial ownership of a ____% Trust Originated Preferred Security
("Trust Preferred Security"), having a stated liquidation amount per Trust
Preferred Security equal to the Stated Amount, representing a preferred
undivided beneficial interest in the assets of the Trust, or upon the occurrence
of a Tax Event Redemption prior to the Purchase Contract Settlement Date, the
Applicable Ownership Interest in the Treasury Portfolio (the "Initial
Securities"). The Company and the Trust also propose to grant to the
Underwriters an option to purchase up to 675,000 additional Income PRIDES (the
"Option Securities" and together with the Initial Securities, the "Securities")
as described in Section 2(b) hereof. In accordance with the terms of the
Purchase Contract Agreement, to be dated as of January , 1998, between the
Company and , as Purchase Contract Agent (the "Purchase Contract Agent"), the
Trust Preferred Securities constituting a part of the Securities will be pledged
by the Purchase Contract Agent, on behalf of the holders of the Securities, to
, as Collateral Agent, pursuant to the Pledge Agreement, to be
dated as of January , 1998 (the "Pledge Agreement"), among the Company, the
Purchase Contract Agent and the Collateral Agent, to secure the holders'
obligation to purchase Common Stock under the Purchase Contracts. The rights and
obligations of a holder of Securities in respect of Trust Preferred Securities,
subject to the pledge thereof, and Purchase Contracts will be evidenced by
Security Certificates (the "Security Certificates") to be issued pursuant to the
Purchase Contract Agreement.
The Trust Preferred Securities will be guaranteed by the
Company with respect to distributions and payments upon liquidation, redemption
and otherwise (the "Trust Preferred Securities Guarantee") pursuant to the Trust
Preferred Securities Guarantee Agreement, dated as of January , 1998 (the "Trust
Preferred Securities Guarantee Agreement"), executed and delivered by the
Company and The First National Bank of Chicago, as trustee (the "Guarantee
Trustee"), for the benefit of the holders from time to time of the Trust
Preferred Securities, and certain back-up undertakings of the Company. All, or
substantially all, of the proceeds from the sale of the Trust Preferred
Securities will be combined with the entire net proceeds from the sale by the
Trust to the Company of its common securities (the "Common Securities" and,
together with the Trust Preferred Securities, the "Trust Securities") guaranteed
by the Company with respect to distributions and payments upon liquidation and
redemption (the "Common Securities Guarantee" and, together with the Trust
Preferred Securities Guarantee, the "Guarantees") pursuant to the Common
Securities Guarantee Agreement, dated as of January , 1998 (the "Common
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Securities Guarantee Agreement" and, together with the Trust Preferred
Securities Guarantee Agreement, the "Guarantee Agreements"), executed and
delivered by the Company for the benefit of the holders from time to time of the
Common Securities, and certain backup-undertakings of the Company, and will be
used by the Trust to purchase the % Debentures due February 16, 2003 (the
"Debentures") of the Company. The Trust Preferred Securities and the Common
Securities will be issued pursuant to the amended and restated agreement of
trust of the Trust, dated as of November 12, 1997 (the "Declaration"), among the
Company, as Sponsor, , and (the "Regular Trustees"), and , as the institutional
trustee (the "Institutional Trustee") and First Chicago Delaware, Inc., as the
Delaware trustee (the "Delaware Trustee" and, together with the Institutional
Trustee and the Regular Trustees, the "Trustees"), and the holders from time to
time of undivided beneficial interests in the assets of the Trust. The
Debentures will be issued pursuant to the Indenture, dated as of January , 1998
(the "Base Indenture"), between the Company and the Bank of New York, as Trustee
(the "Debt Trustee"), as supplemented by the First Supplemental Indenture, dated
January , 1998 (the Base Indenture, as supplemented and amended, being referred
to as the "Indenture"). Capitalized terms used herein without definition shall
be used as defined in the Prospectus.
It is understood that the Company is concurrently entering
into purchase agreements providing for the offering by the Company of an
aggregate of 4,300,000 shares of Common Stock and of $450,000,000 aggregate
principal amount of senior debt (the "Concurrent Offerings").
Prior to the purchase and public offering of the Securities by
the Underwriters, the Offerors and the Underwriters shall enter into an
agreement substantially in the form of Schedule B hereto (the "Pricing
Agreement"). The Pricing Agreement may take the form of an exchange of any
standard form of written communication between the Offerors and the Underwriters
and shall specify such applicable information as is indicated in Schedule B
hereto. The offering of the Securities will be governed by this Agreement, as
supplemented by the Pricing Agreement. From and after the date of the execution
and delivery of the Pricing Agreement, this Agreement shall be deemed to
incorporate the Pricing Agreement.
The Company and the Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-40809) covering the registration of securities of the Company and the Trust,
including the Securities and the Purchase Contracts and Trust Preferred
Securities included in and shares of Common Stock underlying, the Securities,
under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus or prospectuses, and the offering thereof from
time to time in accordance with the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations") and the Company has filed such
post-effective amendments thereto as may be required prior to the execution of
the Pricing Agreement. Such registration statement, as so amended, has been
declared effective by the Commission. Such registration statement, as so
amended, including the exhibits and schedules thereto, if any, and the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information"), is referred to herein as the
"Registration
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Statement"; and the final prospectus relating to the offering of the Securities,
in the form first furnished to the Underwriters by the Company for use in
connection with the offering of the Securities, are collectively referred to
herein as the "Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall be deemed to include all
documents incorporated therein by reference pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), prior to the execution of the
applicable Pricing Agreement; provided, further, that if the Offerors file a
registration statement with the Commission pursuant to Section 462(b) of the
1933 Act Regulations (the "Rule 462(b) Registration Statement"), then after such
filing, all references to "Registration Statement" shall be deemed to include
the Rule 462(b) Registration Statement; and provided, further, that if the
Offerors elect to rely upon Rule 434 of the 1933 Act Regulations, then all
references to "Prospectus" shall be deemed to include the final or preliminary
prospectus and the applicable term sheet or abbreviated term sheet (the "Term
Sheet"), as the case may be, in the form first furnished to the Underwriters by
the Company in reliance upon Rule 434 of the 1933 Act Regulations, and all
references in this Underwriting Agreement to the date of the Prospectus shall
mean the date of the Term Sheet. A "preliminary prospectus" shall be deemed to
refer to any prospectus used before the registration statement became effective
and any prospectus that omitted, as applicable, the Rule 430A Information, the
Rule 434 Information or other information to be included upon pricing in a form
of prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, that was used after such effectiveness and prior to the execution
and delivery of the applicable Pricing Agreement. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the electronically transmitted
copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
The Offerors understand that the Underwriters propose to make
a public offering of the Securities as soon as the Underwriters deem advisable
after the Pricing Agreement has been executed and delivered and the Declaration,
the Indenture and the Trust Preferred Securities Guarantee Agreement have been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
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SECTION 1. Representations and Warranties.
(a) The Offerors represent and warrant to each Underwriter as
of the date hereof and as of the date of the Pricing Agreement (such later date
being hereinafter referred to as the "Representation Date") that:
(i) The Company and the Trust meet, and at the respective
times of the commencement and consummation of the offering of the
Securities will meet, the requirements for the use of Form S-3 under
the 1933 Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Offerors, are contemplated by
the Commission, and any request on the part of the Commission for
additional information has been complied with. At the respective times
the Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendments thereto became effective and at each
Representation Date, the Registration Statement, any Rule 462
Registration Statement and any amendments or supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and the 1939 Act and the
rules and regulations of the Commission under the 1939 Act (the "1939
Act Regulations") and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Time (as
defined herein), the Prospectus and any amendments and supplements
thereto did not and will not include an 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. If the Offerors elect to rely upon Rule 434
of the 1933 Act Regulations, the Offerors will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
(A) statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Offerors in writing by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement or the Prospectus
or (B) the part of the Registration Statement which shall constitute
the Statement of Eligibility (Form T-1) under the 1939 Act.
Each preliminary prospectus and prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied as so filed in all material respects with the 1933 Act
Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with the
offering of the Securities will, at the time of such delivery, be
identical to the electronically transmitted copies thereof filed with
the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
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(ii) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement and the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934
Act, and the rules and regulations of Commission thereunder (the "1934
Act Regulations"), and, when read together with the other information
in the Prospectus, at the time the Registration Statement became
effective, at the time the Prospectus was issued and at the Closing
Time, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were or are made, not misleading.
(iii) Each of the accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(iv) The financial statements of the Company included or
incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the statement of operations,
shareholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified. The financial statements of
Greenfield Industries, Inc. ("Greenfield") included or incorporated by
reference in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly the financial
position of Greenfield and its consolidated subsidiaries as at the
dates indicated and the statement of operations, stockholders' equity
and cash flows of Greenfield and its consolidated subsidiaries for the
periods specified. Each of the financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included or incorporated by reference in
the Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein. The
ratio of earnings to fixed charges included in the Prospectus has been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission. The selected financial data and the summary financial
information included in the Prospectus present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement
and the Prospectus. The pro forma financial statements and the related
notes thereto included in the Registration Statement and the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate
to give effect to the transactions and circumstances referred to
therein.
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(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) 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 (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries, considered as one
enterprise, and (C) except for regular quarterly dividends on the
Common Stock in amounts per share that are consistent with past
practice there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) The Company has been duly organized, is validly existing
as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the Pricing Agreement, the Purchase Contract Agreement, the
Pledge Agreement and the Guarantee Agreements. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other 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 to
be in good standing would not have a Material Adverse Effect.
(vii) Other than the Trust, each subsidiary of the Company has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and 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 to
be in good standing would not result in a Material Adverse Effect; all
of the issued and outstanding shares of capital stock of each
subsidiary of the Company have been authorized and validly issued, are
fully paid and non-assessable and all such shares are owned by the
Company, directly or through its subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of the
subsidiaries was issued in violation of preemptive or other similar
rights of any securityholder of such subsidiary. The only subsidiaries
of the Company are the subsidiaries listed on Schedule C hereto.
(viii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in
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the Prospectus). The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable; none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) The Trust has been created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
(the "Delaware Act") with the power and authority to own property and
to conduct its business as described in the Registration Statement and
Prospectus and to enter into and perform its obligations under this
Agreement, the Pricing Agreement, the Trust Preferred Securities, the
Common Securities and the Declaration; the Trust is qualified to
transact business as a foreign company and is in good standing in each
jurisdiction in which such qualification is necessary, except where the
failure to so qualify or be in good standing would not have a Material
Adverse Effect on the Trust; the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus;
the Trust is and will, under current law, be classified for United
States federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
(x) The Purchase Contract Agreement has been duly authorized
by the Company and, at the Closing Time, when validly executed and
delivered by the Company and assuming due authorization, execution and
delivery of the Purchase Contract Agreement by the Purchase Contract
Agent, will constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
and will conform in all material respects to the description thereof
contained in the Prospectus and at the Closing Time, the Trust
Preferred Securities Guarantee Agreement will have been duly qualified
under the 1939 Act.
(xi) The Pledge Agreement has been duly authorized by the
Company and, at the Closing Time, when validly executed and delivered
by the Company and assuming due authorization, execution and delivery
of the Pledge Agreement by the Collateral Agent and the Purchase
Contract Agent, will constitute a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, and will conform in all material respects to the description
thereof contained in the Prospectus.
(xii) The Remarketing Agreement has been duly authorized by
each of the Offerors and, at the Closing Time, when validly executed
and delivered by each of the Offerors and assuming due authorization,
execution and delivery of the Remarketing Agreement by the Purchase
Contract Agent and the Remarketing Agent, will constitute a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, and will conform in all material
respects to the description thereof contained in the Prospectus.
(xiii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and
the Prospectus, will be validly issued
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and will represent undivided beneficial interests in the assets of the
Trust and will conform in all material respects to the description
thereof contained in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights; and at
the Closing Time all of the issued and outstanding Common Securities of
the Trust will be directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equitable right.
(xiv) The Declaration has been duly authorized by the Company
and, at the Closing Time, will have been executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Institutional Trustee and the
Delaware Trustee, the Declaration will, at the Closing Time, be a
legal, valid and binding obligation of the Company and the Regular
Trustees, enforceable against the Company and the Regular Trustees in
accordance with its terms, and will conform in all material respects to
the description thereof contained in the Prospectus; and at the Closing
Time, the Declaration will have been duly qualified under the 1939 Act.
(xv) Each of the Guarantee Agreements has been duly authorized
by the Company and, when validly executed and delivered by the Company,
and, in the case of the Trust Preferred Securities Guarantee Agreement,
assuming due authorization, execution and delivery of the Trust
Preferred Securities Guarantee by the Guarantee Trustee, will
constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, and each
of the Guarantees and the Guarantee Agreements will conform in all
material respects to the description thereof contained in the
Prospectus; and at the Closing Time, the Trust Preferred Securities
Guarantee Agreement will have been duly qualified under the 0000 Xxx.
(xvi) The Securities have been duly authorized for issuance
and sale to the Underwriters and, when issued and delivered against
payment of the consideration as provided herein, will be validly issued
and fully paid and non-assessable and will conform in all material
respects to the description thereof contained in the Prospectus and
such description conforms to the rights set forth in the instruments
defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; the issuance of
the Securities is not subject to preemptive or other similar rights of
any securityholder of the Company.
(xvii) The shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contract Agreement (the "Shares"),
when issued and delivered in accordance with the provisions of the
Purchase Contract Agreement and the Pledge Agreement, will be
authorized, validly issued and fully paid and non-assessable and will
conform in all material respects to the description thereof contained
in the Prospectus and such description conforms to the rights set forth
in the instruments defining the same; no holder of the Shares will be
subject to personal liability by reason of being such a holder; and the
issuance of such Shares will not be subject to preemptive or other
similar rights of any securityholder of the Company.
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(xviii) The Indenture has been duly authorized by the Company
and qualified under the 1939 Act and, at the Closing Time, will have
been executed and delivered and will constitute a legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms; the Indenture will conform in all material
respects to the description thereof contained in the Prospectus.
(xix) The Debentures have been duly authorized by the Company
and, at the Closing Time, will have been executed by the Company and,
when authenticated in the manner provided for in the Indenture and
delivered against payment therefor as described in the Prospectus, will
constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, and
will be in the form contemplated by, and entitled to the benefits of,
the Indenture and will conform in all material respects to the
description thereof contained in the Prospectus.
(xx) Each of the Regular Trustees of the Trust is an employee
of the Company and has been authorized by the Company to execute and
deliver the Declaration.
(xxi) Neither the Company nor any of its subsidiaries is in
violation of its articles of incorporation or by-laws. The Trust is not
in violation of the Declaration or its certificate of trust filed with
the State of Delaware on November 12, 1997 (the "Certificate of
Trust"); none of the Company, any of its subsidiaries or the Trust is
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, note, lease, loan or credit agreement or any other agreement
or instrument to which the Company, any of its subsidiaries or the
Trust is a party or by which any of them may be bound, or to which any
of the property or assets of the Company, any subsidiary or the Trust
is subject (collectively "Agreements and Instruments"), or in violation
of any applicable law, rule or regulation or any judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets, which
violation or default would, singly or in the aggregate, have a Material
Adverse Effect.
(xxii) The entry into the Purchase Contracts underlying the
Securities by the Company, the offer of the Securities as contemplated
herein and in the Prospectus, the issue of the Shares and the sale of
the Shares by the Company pursuant to the Purchase Contracts; the
execution, delivery and performance of this Agreement, the Pricing
Agreement, the Purchase Contracts, the Purchase Contract Agreement, the
Pledge Agreement, the Remarketing Agreement, the Declaration, the Trust
Preferred Securities, the Common Securities, the Indenture, the
Debentures, the Guarantee Agreements and the Guarantees, and the
consummation of the transactions contemplated herein, therein and in
the Registration Statement (including the issuance and sale of the
Securities, the use of proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds" and the
concurrent issuance and sale of Common Stock and $450,000,000 aggregate
principal amount of senior debt by the Company (the "Concurrent
Offerings")) and compliance by the
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Offerors with their obligations hereunder and thereunder have been
authorized by all necessary action (corporate or otherwise) and do not
and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of any of the
terms or provisions of, or constitute a default or Repayment Event (as
defined below) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company,
any subsidiary or the Trust pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will any such action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or the Declaration
or Certificate of Trust or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company, any subsidiary or the Trust or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company,
any subsidiary or the Trust.
(xxiii) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
imminent and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse
Effect.
(xxiv) There is no action, suit, proceeding, inquiry or
investigation before or brought 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 Trust, the Company or any
of its subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might be reasonably be expected to materially
and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement or the
Concurrent Offerings, the Pricing Agreement, the Purchase Contracts,
the Purchase Contract Agreement, the Pledge Agreement, the Guarantee
Agreements, the Indenture or the performance by the Company of it
obligations hereunder and thereunder. The aggregate of all pending
legal or governmental proceedings to which the Trust, the Company or
any subsidiary thereof is a party or of which any of their respective
properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(xxv) There are no contracts or documents which are required
to be described in the Registration Statement, the Prospectus or the
documents incorporated by
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reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(xxvi) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by each of the Offerors.
(xxvii) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate 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, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice
or is otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xxviii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the
performance by the Offerors of their obligations hereunder, in
connection with the offering, issuance or sale of the Securities
hereunder, the entry into the Purchase Contracts underlying the
Securities, in connection with the issuance and sale of the Common
Securities, and the issuance and sale of the Shares by the Company
pursuant to such Purchase Contracts or the consummation of the
transactions contemplated by this Agreement or the issuance and sale of
Common Stock and of senior debt of the Company pursuant to the
Concurrent Offerings, except such as have been already obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(xxix) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
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(xxx) The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in
each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus or (b) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xxxi) Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) 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 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"), (B) 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,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) 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 any Environmental
Laws.
(xxxii) The Company has complied with, and is and will be in
compliance with, the provisions of that certain Florida act relating to
disclosure of doing business in Cuba, codified as Section 517.075 of
the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
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(xxxiii) None of the Trust nor the Company or any of its
subsidiaries is, and upon the issuance and sale of the Securities as
herein contemplated and the application of the net proceeds therefrom
as described in the Prospectus will not be, an "investment company" or
an entity "controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(xxxiv) The Company has filed all federal, state, local and
foreign income and franchise tax returns required to be filed through
the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company have any knowledge of
any tax deficiency which, if determined adversely to the Company or any
of its subsidiaries, might have) a Material Adverse Effect or a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(b) Any certificate signed by any officer of the Company or a
Trustee of the Trust and delivered to the Representatives or to counsel for the
Representatives shall be deemed a representation and warranty by the Company or
the Trust, as the case may be, as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Offerors
agree to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Offerors,
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter at the price per security set forth in the Pricing Agreement,
plus any additional number of Initial Securities which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 10 hereof.
(1) If the Offerors have elected not to rely upon Rule 430A of
the 1933 Act Regulations, the initial public offering price per Security and the
purchase price per Security to be paid by the Underwriters for the Securities
have each been determined and set forth in the Pricing Agreement, dated the date
hereof, and any necessary amendments to the Registration Statement and the
Prospectus will be filed before the Registration Statement becomes effective.
(2) If the Offerors have elected to rely upon Rule 430A of the
1933 Act Regulations, the purchase price per Security to be paid by the
Underwriters shall be an amount equal to the initial public offering price per
Security, less an amount per Security to be determined by agreement between the
Underwriters and the Offerors. The initial public offering price per Security
shall be a fixed price to be determined by agreement between the Underwriters
and the Offerors. The initial public offering price and the purchase price, when
so determined, shall be set forth in the Pricing Agreement. In the event that
such prices have
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not been agreed upon and the Pricing Agreement has not been executed and
delivered by all parties thereto by the close of business on the fourth business
day following the date of this Agreement, this Agreement shall terminate
forthwith, without liability of any party to any other party, unless otherwise
agreed to by the Offerors and the Underwriters.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Offerors hereby grant to the Underwriters, severally and not jointly,
the right to purchase up to an additional 675,000 Option Securities at the price
per share set forth in the Pricing Agreement. The option hereby granted will
expire automatically at the close of business on the 30th calendar day after (i)
the later of the date the Registration Statement and any Rule 462(b)
Registration Statement becomes effective, if the Offerors have elected not to
rely upon Rule 430A under the 1933 Act Regulations, or (ii) the Representation
Date, if the Offerors have elected to rely upon Rule 430A under the 1933 Act
Regulations, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representatives to the Offerors setting forth the aggregate number of additional
Optional Securities to be purchased and the time and date of delivery for the
related Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representatives but shall not be later
than seven full business days after the exercise of such option, nor in any
event before the Closing Time, unless otherwise agreed upon by the
Representatives and the Offerors. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) The Trust Preferred Securities underlying the Securities
will be pledged with the Collateral Agent to secure the holders' obligations to
purchase Common Stock under the Purchase Contracts. Such pledge shall be
effected by the transfer to the Collateral Agent of the Trust Preferred
Securities to be pledged at the Closing Time and appropriate Date of Delivery,
if any, in accordance with the Pledge Agreement.
(d) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities, shall be made, against the delivery to
the Collateral Agent of the Trust Preferred Securities relating to such
Securities, at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called "Closing Time").
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In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Company, on each Date of Delivery as specified in the
notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the Company, against
delivery to the Representatives for the respective accounts of the Underwriters
of certificates for the Securities to be purchased by them. It is understood
that each Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names
as the Representatives may request in writing at least one full business days
before the Closing Time or any Date of Delivery, as the case may be. The
certificates for the Initial Securities and the Option Securities, if any, will
be made available for examination and packaging by the Representatives in The
City of New York not later than 10:00 a.m. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Offerors. The Offerors covenant
with each Underwriter as follows:
(a) The Offerors, subject to Section 3(b), will comply with
the requirements of Rule 430A of the 1933 Act Regulations and/or Rule
434 of the 1933 Act Regulations, as applicable, and will notify the
Representatives immediately, and confirm the notice in writing, (i) of
the effectiveness of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the
Prospectus, (ii) of the receipt of any comments from the Commission,
(iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or the initiation of any proceedings for that
purpose and (v) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or
the exemption from qualification of the Securities or the Shares under
state securities or Blue Sky laws or the initiation or threatening of
any proceeding for such purpose. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as
it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
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Commission and, in the event that it was not, it will promptly file
such prospectus. The Offerors will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Offerors will give the Representatives notice of their
intention to file or prepare any amendment to the Registration
Statement (including any post-effective amendment and any filing under
Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise; will furnish the Representatives with copies of any such
Rule 462(b) Registration Statement, Term Sheet, amendment, supplement
or revision a reasonable amount of time prior to such proposed filing
or use, as the case may be; and will not file or use any such Rule
462(b) Registration Statement, Term Sheet, amendment, supplement or
revision to which the Representatives or counsel for the
Representatives shall object.
(c) The Company has furnished or will deliver to the
Representatives and counsel for the Representatives, without charge,
signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed
to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(d) The Company has delivered to each Underwriter, without
charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(e) The Offerors will comply with the 1933 Act and the 1933
Act Regulations and the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Registration Statement and
the Prospectus. If at any time when a Prospectus is required by the
1933 Act to be delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of
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counsel for the Underwriters or for the Offerors, to amend the
Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such
time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Offerors will promptly prepare and file
with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements, and the Offerors will furnish to the Underwriters,
without charge, such number of copies of such amendment or supplement
as the Underwriters may reasonably request.
(f) The Offerors will use their best efforts, in cooperation
with the Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from
the later of the effective date of the Registration Statement and any
Rule 462(b) Registration Statement; provided, however, that the Company
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
Offerors will file such statements and reports as may be required by
the laws of such jurisdiction to continue such qualification in effect
for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earning statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds".
(i) The Offerors, during the period when the Prospectus is
required to be delivered under the 1933 Act of the 1934 Act, will file
all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
(j) The Offerors will use their best efforts to effect the
listing of the Income PRIDES and the Shares on the New York Stock
Exchange and to cause the Securities to be registered under the 1934
Act.
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(k) During a period of 90 days from the date of the Pricing
Agreement, neither the Trust nor the Company will, without the prior
written consent of Xxxxxxx Xxxxx, (A) directly or indirectly, 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 transfer or dispose of any
Securities, Purchase Contracts, Trust Preferred Securities, Common
Stock or the Debentures or any security convertible into or
exchangeable or exercisable for Securities, Purchase Contracts, Trust
Preferred Securities, Common Stock or the Debentures, or any equity
securities substantially similar to the Securities, Trust Preferred
Securities, Purchase Contracts or Common Stock or any debt securities
substantially similar to the Debentures; or (B) enter into any swap or
any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of
the Securities, Purchase Contracts, Trust Preferred Securities, Common
Stock or the Debentures or any security convertible into or
exchangeable into or exercisable for the Securities, Purchase
Contracts, Trust Preferred Securities, Common Stock or the Debentures
or any debt securities substantially similar to the Debentures or
equity securities substantially similar to the Securities, whether any
such swap or transaction described in (A) or (B) is to be settled by
delivery of Securities, Purchase Contracts, Trust Preferred Securities,
Common Stock or the Debentures or other such securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the
Securities, Purchase Contracts, Trust Preferred Securities, Common
Stock or the Debentures to be sold hereunder or pursuant to the
Concurrent Offerings, (B) Income PRIDES or Growth PRIDES to be created
or recreated upon substitution of pledged securities or shares of
Common Stock issuable upon early settlement of the Income PRIDES or
Growth PRIDES, (C) any shares of Common Stock issued by the Company
upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the
Prospectus, (D) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit
plans of the Company referred to in the Prospectus or (E) any shares of
Common Stock issued pursuant to any non-employee director stock plan or
dividend reinvestment plan.
SECTION 4. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
the Pricing Agreement, the Purchase Contracts, the Purchase Contract Agreement,
the Pledge Agreement and the Remarketing Agreement, including, without
limitation, expenses related to the following, if incurred: (i) the preparation,
delivery, printing and filing of the Registration Statement and Prospectus as
originally filed (including financial statements and exhibits) and of each
amendment thereto; (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, the Pricing Agreement, any Agreement among
Underwriters and such other documents as may be required in connection with the
offering, purchase, sale, issuance, or delivery of the Securities; (iii) the
preparation, issuance and delivery of the certificates for the Securities and
the Shares to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters; (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents (including the transfer agents
and registrars), as well as fees and
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disbursements of the Trustees, the Purchase Contract Agent, the Remarketing
Agent, the Collateral Agent and any Depositary, and their respective counsel;
(v) the qualification of the Securities and the Shares under securities laws in
accordance with the provisions of Section 3(f), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto; (vi) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment thereto,
of each preliminary prospectus, any Term Sheet and of the Prospectus and any
amendments or supplements thereto; (vii) the printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto; (viii)
any fees payable in connection with the rating of the Securities by nationally
recognized statistical rating organizations; (ix) any fees payable to the
Commission; and (x) the fees and expenses incurred in connection with the
listing of the Income PRIDES and the Shares on the New York Stock Exchange.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of
the representations and warranties of the Offerors herein contained or in
certificates of any officer of the Company or any subsidiary or the trustees of
the Trust delivered pursuant to the provisions hereof, to the performance by the
Offerors of their covenants and other obligations hereunder, and to the
following further conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, has become effective, and on the date hereof
and at the Closing Time and any Date of Delivery, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to
the satisfaction of counsel to the Underwriters. A prospectus
containing Rule 430A shall have been filed with the Commission in
accordance with Rule 424(b) (or any required post-effective amendment
providing such information shall have been filed and declared effective
in accordance with the requirements of Rule 430A), or, if the Company
has elected to rely upon Rule 434, a Term Sheet shall have been filed
with the Commission in accordance with Rule 424(b).
(b) At the Closing Time the Representatives shall have
received:
(1) The favorable opinion, dated as of the Closing
Time, of Xxxxx X. Xxxxx, Vice President, Secretary and General
Counsel to the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other
Underwriters, to the effect that:
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(i) The Company has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the Commonwealth
of Pennsylvania.
(ii) The Company has corporate power
and authority to own, lease and operate its
properties and to conduct its business as described
in the Prospectus.
(iii) 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 so to qualify or
to be in good standing would not result in a Material
Adverse Effect.
(iv) The authorized, issued and
outstanding capital stock of the Company is as set
forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization" (except
for subsequent issuances, pursuant to reservation,
agreements or employee benefit plans referred to in
the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the
Prospectus); the shares of issued and outstanding
capital stock have been duly authorized and validly
issued and are fully paid and non-assessable; and
none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive
or other similar rights of any securityholder of the
Company.
(v) Except for the Trust, each U.S.
subsidiary of the Company has been incorporated and
is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, has the corporate power and authority
to own, lease and operate its properties and to
conduct its business as described in the Prospectus
and 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 to be in good standing would
not result in a Material Adverse Effect; all of the
issued and outstanding capital stock of each such
subsidiary of the Company has been duly authorized
and validly issued, is fully paid and non-assessable
and, to the best of my knowledge, is owned by the
Company directly or through subsidiaries all such
shares are owned by the Company, directly or through
its subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital
stock of any subsidiary was issued in violation of
the preemptive or similar rights of any
securityholder of such subsidiary.
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(vi) The Declaration has been duly
authorized, executed and delivered by the Company and
the Trustees and is a legal, valid and binding
obligation of the Company, enforceable against the
Company and each of the Regular Trustees in
accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a
proceeding in equity or at law) (the "Bankruptcy
Exceptions"); and the Declaration has been duly
qualified under the 0000 Xxx.
(vii) All legally required proceedings
in connection with the authorization, issuance and
validity of the Securities and the sale of the
Securities in accordance with this Agreement (other
than the filing of post-issuance reports, the
non-filing of which would not render the Securities
invalid) have been taken and all legally required
orders, consents or other authorizations or approvals
of any other public boards or bodies in connection
with the authorization, issuance and validity of the
Securities and the sale of the Securities in
accordance with this Agreement (other than in
connection with or in compliance with the provisions
of the securities or Blue Sky laws of any
jurisdictions, as to which no opinion need be
expressed) have been obtained and are in full force
and effect.
(viii) The Registration Statement,
including any Rule 462(b) Registration Statement, has
been declared effective under the 1933 Act and the
required filing of the Prospectus pursuant to the
Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the
best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement or a Rule
462(b) Registration Statement has been issued under
the 1933 Act, and no proceedings therefor have been
initiated or threatened by the Commission.
(ix) The Registration Statement as of
its effective date and the Prospectus and each
amendment or supplement thereto as of its issue date
(other than the financial statements and supporting
schedules included therein or omitted therefrom, as
to which we need express no opinion), complied as to
form in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations; and the
Declaration, the Indenture, the Trust Preferred
Securities Guarantee Agreement and the Statements of
Eligibility on Forms T-1 with respect to each of the
Institutional Trustee, the Debt Trustee, and the
Guarantee Trustee filed with the Commission as part
of the Registration Statement complied as to form in
all respects with the requirements of the 1939 Act
and the 1939 Act Regulations.
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(x) Each of the documents incorporated
by reference in the Prospectus (other than the
financial statements and supporting schedules
included therein or omitted therefrom, as to which we
need express no opinion), when they were filed with
the Commission complied as to form in all material
respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
(xi) The Securities have been duly
authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement
against payment of the consideration as provided in
the Pricing Agreement, will be validly issued and
fully paid and non-assessable and no holder of the
Securities is or will be subject to personal
liability by reason of being such a holder; the
Common Stock and the Securities are each registered
under the 1934 Act, and the Income PRIDES issuable at
the Closing Time and the Shares issuable by the
Company pursuant to the Purchase Contracts have been
authorized for listing on the New York Stock
Exchange, upon official notice of issuance.
(xii) The Shares subject to the Purchase
Contract Agreement have been validly authorized and
reserved for issuance and, when issued and delivered
by the Company in accordance with the provisions of
the Purchase Contract Agreement, the Purchase
Contracts and the Pledge Agreement, will be fully
paid and non-assessable and no holder of the
Securities is or will be subject to personal
liability by reason of being such a holder; the
issuance of such Shares will not be subject to
preemptive or other similar rights arising by law or,
to the best of such counsel's knowledge, otherwise.
(xiii) The issuance of the Securities is
not subject to preemptive or other similar rights of
any securityholder of the Company.
(xiv) All of the issued and outstanding
Common Securities of the Trust are directly owned by
the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or
equitable right.
(xv) This Agreement and the Pricing
Agreement have been duly authorized, executed and
delivered by each of the Company and the Trust.
(xvi) The Purchase Contract Agreement
has been duly authorized by the Company and, assuming
due authorization, execution and delivery of the
Purchase Contract Agreement by the Purchase Contract
Agent, constitutes a legal, valid and binding
obligation of the
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Company, enforceable against the Company in
accordance with its terms, subject to the Bankruptcy
Exceptions.
(xvii) The Pledge Agreement has been duly
authorized by the Company and, assuming due
authorization, execution and delivery of the Pledge
Agreement by the Collateral Agent and the Purchase
Contract Agent, constitutes a legal, valid and
binding obligation of the Company, enforceable
against the Company in accordance with its terms,
subject to the Bankruptcy Exceptions.
(xviii) The Remarketing Agreement has
been duly authorized by the Offerors and, assuming
due authorization, execution and delivery of the
Remarketing Agreement by the Purchase Contract Agent
and the Remarketing Agent, constitutes a legal, valid
and binding obligation of the Company, enforceable
against the Company in accordance with its terms,
subject to the Bankruptcy Exceptions.
(xix) Each of the Guarantee Agreements
has been duly authorized, executed and delivered by
the Company; the Trust Preferred Securities Guarantee
Agreement, assuming it is duly authorized, executed,
and delivered by the Guarantee Trustee, constitutes a
legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with
its terms, subject to the Bankruptcy Exceptions, and
the Trust Preferred Securities Guarantee Agreement
and the Declaration have been duly qualified under
the 0000 Xxx.
(xx) The Indenture has been executed
and delivered by the Company and, assuming
authorization, execution, and delivery thereof by the
Debt Trustee, is a legal, valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the
Bankruptcy Exceptions; and the Indenture has been
duly qualified under the 0000 Xxx.
(xxi) The Debentures are in the form
contemplated by the Indenture, have been duly
authorized, executed and delivered by the Company
and, when authenticated by the Debt Trustee in the
manner provided for in the Indenture and delivered
against payment therefor by the Trust, will
constitute legal, valid and binding obligations of
the Company, enforceable against the Company in
accordance with their terms, subject to the
Bankruptcy Exceptions.
(xxii) The entry into the Purchase
Contracts underlying the Securities by the Company,
the offer of the Securities as contemplated herein
and in the Prospectus, the issue of the Shares and
the sale of the Shares by the Company pursuant to the
Purchase Contracts; the execution, delivery and
performance of this Agreement, the Pricing
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Agreement, the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement, the
Remarketing Agreement, the Declaration, the Trust
Preferred Securities, the Common Securities, the
Indenture, the Debentures, the Guarantee Agreements
and the Guarantees, and the consummation of the
transactions contemplated herein, therein and in the
Registration Statement (including the issuance and
sale of the Securities, the use of proceeds from the
sale of the Securities as described in the Prospectus
under the caption "Use of Proceeds" and the
concurrent issuance and sale of Common Stock and of
senior debt by the Company (the "Concurrent
Offerings")) and compliance by the Offerors with
their obligations hereunder and thereunder have been
authorized by all necessary action (corporate or
otherwise) and do not and will not, whether with or
without the giving of notice or passage of time or
both, conflict with or constitute a breach of any of
the terms or provisions of, or constitute a default
or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
the Company, any subsidiary or the Trust pursuant to,
the Agreements and Instruments (as defined in Section
1(a)(xxi) of the Purchase Agreement) (except for such
conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material
Adverse Effect), nor will any such action result in
any violation of the provisions of the charter or
by-laws of the Company or any subsidiary or the
Declaration or Certificate of Trust or any applicable
law, statute, rule, regulation, judgment, order, writ
or decree known to me of any government, government
instrumentality or court, domestic or foreign, having
jurisdiction over the Company, any subsidiary or the
Trust or any of their respective assets, properties
or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder
of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such
indebtedness by the Company, any subsidiary or the
Trust.
(xxiii) All conditions precedent provided
for in the Purchase Contract Agreement relating to
the authentication and delivery of the Security
Certificates have been complied with and the Company
is duly entitled to the authentication and delivery
of the Security Certificates in accordance with the
terms of the Purchase Contract Agreement; the
Security Certificates are in a form contemplated by
the Purchase Contract Agreement and comply with all
applicable statutory requirements and with the
requirements of the New York Stock Exchange.
(xxiv) There is not pending any action,
suit, proceeding, inquiry or investigation, to which
the Company or any subsidiary is a
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party, or to which the property or assets of the
Company or any subsidiary is subject, before or
brought by any court or governmental agency or body,
domestic or foreign, which might reasonably result in
a Material Adverse Effect or which might reasonably
be expected to materially and adversely affect the
properties or assets thereof or the consummation of
the transactions contemplated in this Agreement or
the concurrent Offerings or the performance by the
Company of its obligations thereunder; and to the
best of my knowledge, no such actions or proceedings
are threatened.
(xxv) The information in the Prospectus
under the captions "Business - Regulation", "Business
- Properties", "Business - Legal Matters," "The
Trust," "Use of Proceeds", "Capitalization,"
"Description of the FELINE PRIDES," "Description of
the Purchase Contracts," "Certain Provisions of the
Purchase Contract Agreements and the Pledge
Agreement," "Description of the Trust Preferred
Securities," "Description of the Guarantee,"
"Description of the Debentures," "Effect of
Obligations under the Debentures and the Guarantee",
"Description of Common Stock," to the extent that it
constitutes matters of law, summaries of legal
matters, the Company's charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed
by me and is correct in all material respects.
(xxvi) All descriptions in the Prospectus
of contracts and other documents to which the Company
or its subsidiaries are a party are accurate in all
material respects; to the best of my knowledge, there
are no franchises, contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments
required to be described or referred to in the
Registration Statement 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; and no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, agreement, note, lease
or other instrument so described, referred to, filed
or incorporated by reference.
(xxvii) No filing with, or authorization,
approval, consent, license, order, registration,
qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than
under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as any be required under
the securities or blue sky laws of the various
states, as to which we need express no opinion) is
necessary or required in connection with the due
authorization, execution and deliver of this
Agreement or for the offering, issuance, sale or
delivery of the Securities or the securities offered
in the Concurrent Offerings or the
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27
performance by the Offerors of their respective
obligations in this Agreement, the Pricing Agreement,
the Remarketing Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the Indenture, the
Debentures, the Trust Preferred Securities Guarantee
Agreement, the Trust Preferred Securities Guarantee,
the Declaration and the Securities.
(xxviii) To the best of my knowledge,
there are no statues or regulations that are required
to be described in the Prospectus that are not
described as required.
(xxix) The rights under the Company's
shareholder rights plan to which holders of the
Securities will be entitled have been duly authorized
and validly issued.
(xxx) To the best of my knowledge,
neither the Company nor any subsidiary is in
violation of its charter or by-laws and no default by
the Company or any subsidiary exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is
described or referred to in the Registration
Statement or the Prospectus or filed or incorporated
by reference as an exhibit to the Registration
Statement.
Moreover, such counsel shall confirm that nothing has come to
such counsel's attention that would lead such counsel to believe that
the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), (except for
financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which
such counsel need make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and
other financial data included or incorporated by reference therein or
omitted therefrom, as to which such counsel need make no statement), at
the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, 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, as to
matters of New York law, upon the opinion of Xxxxxxxx Xxxxxxxxx Professional
Corporation, special counsel to the Offerors, and as to matters of Delaware law,
upon the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special Delaware
counsel to the Offerors, in which case the opinion shall state that such counsel
believes that you and such counsel are entitled to so rely.
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28
(2) The favorable opinion, dated as of the Closing
Time, of Xxxxxxxx Ingersoll Professional Corporation, special
counsel to the Offerors, in form and substance satisfactory to
counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the Underwriters,
to the effect that:
(i) The Registration Statement,
including any Rule 462(b) Registration Statement, has
been declared effective under the 1933 Act; any
required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the
time period required by Rule 424(b); and, to the best
of our knowledge no stop order suspending the
effectiveness of the Registration Statement or any
462(b) Registration Statement has been issued under
the 1933 Act, and no proceedings therefor initiated,
or threatened by the Commission.
(ii) The Registration Statement and the
Prospectus and each amendment or supplement thereto
(in each case, other than the financial statements
and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion) as
of their respective effective or issue dates, or when
amended, as appropriate, complied as to form in all
material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(iii) The information in the Prospectus
under the captions "The Trust," "Description of the
FELINE PRIDES," "Description of the Purchase
Contracts," "Certain Provisions of the Purchase
Contract Agreements and the Pledge Agreement,"
"Description of the Trust Preferred Securities,"
"Description of the Guarantee," "Description of the
Debentures," "Effect of Obligations Under the
Debentures and the Guarantee," and "Description of
the Common Stock," and in the Registration Statement
under Item 15 to the extent that it constitutes
matters of law, summaries of legal matters, the
Company's charter and bylaws or legal proceedings, or
legal conclusions, has been reviewed by us and is
correct in all material respects; and the opinion of
such firm set forth under "Certain Federal Income Tax
Consequences" is confirmed.
(iv) The Purchase Contract Agreement,
the Purchase Contracts underlying the Securities
being delivered at the Closing Time and at any Date
of Delivery, and the Pledge Agreement have been duly
authorized, executed and delivered by the Company and
each is a valid and legally binding agreement of the
Company enforceable against the Company in accordance
with its terms; provided, however, that based on a
review of applicable case law, upon the occurrence of
a Termination Event, Section 365(e)(2) of the
Bankruptcy Code (11 U.S.C. xx.xx. 101-1330, as
amended) should not substantively limit the
provisions of Sections 3.15 and 5.8 of the Purchase
Contract Agreement
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29
and Section 4.3 of the Pledge Agreement that require
termination of the Purchase Contracts and release of
the Collateral Agent's security interest in the Trust
Preferred Securities or the Treasury Securities;
provided, however, that procedural restrictions
respecting relief from the automatic stay under
Section 362 of the Code may affect the timing of the
exercise of such rights and remedies.
(v) When the Securities are issued in
accordance with the terms of the Purchase Contract
Agreement and delivered against payment therefor, the
Securities will entitle the holders thereof to the
rights specified in the Purchase Contract Agreement.
(vi) For purposes of the opinions
expressed therein, such counsel has assumed that (1)
the Pledge Agreement has been authorized, executed
and delivered by the Purchase Contract Agent on
behalf of each of the holders of the Securities from
time to time, (2) the Purchase Contract Agent is
incorporated and validly existing under the laws of
the state of its incorporation, (3) the Purchase
Contract Agent and each of the holders of the
Securities has full power, authority and legal right
(including, without limitation, any legal right
dependent upon there being no necessary governmental
approvals or filings and no conflict with laws,
governing documents or contracts) to make and perform
its obligations under the Pledge Agreement, (4) the
Pledge Agreement is the legal, valid, binding and
enforceable obligation of the Purchase Contract Agent
on behalf of each of the holders of the Securities
from time to time, and (5) the Purchase Contract
Agent and each holder of Securities has sufficient
rights in the Preferred Securities or the Treasury
Securities, as the case may be, for the security
interest of the Collateral Agent for the benefit of
the Company to attach.
For purposes of such counsel's opinion: (i) "UCC" means the
Uniform Commercial Code as in effect on the date thereof in the State
of New York; (ii) "Federal Book-Entry Regulations" means the United
States Department of Treasury regulations governing the transfer and
pledge of marketable Treasury Securities maintained in the form of
entries in the records of the Federal Reserve Banks and set forth in 61
Fed. Reg. 43,626 (1996) (to be codified at 31 C.F.R. Part 357), (iii)
"Securities Intermediary" means acting solely in its capacity as a
"securities intermediary" as defined in the UCC and the Federal
Book-Entry Regulations; and (iv) "Collateral Account" means account
number maintained by the Securities Intermediary in the name as
Purchase Contract Agent on behalf of the holders of certain securities
of Kennametal Financing I, Collateral Account, subject to the security
interest of The Chase Manhattan Bank, as Collateral Agent for the
benefit of Kennametal, Inc. as pledgee pursuant to the Pledge
Agreement, dated as of January , 1998, among the Securities
Intermediary, the Purchase Contract Agent and the Company (the "Pledge
Agreement") and (v) acting as defined in Section 8-313(4) of the UCC.
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The provisions of the Pledge Agreement are effective to
create, in favor of the Collateral Agent for the benefit of the
Company, a valid security interest under the UCC in all "securities
entitlements" (as defined in Section 8-102(a)(17) of the UCC and the
Federal Book-Entry Regulations) now or hereafter credited to the
Collateral Account relating to Preferred Securities or Treasury
Securities (such securities entitlements, the "Pledged Securities
Entitlements"). The provisions of the Pledge Agreement are effective
under the UCC and the Federal Book-Entry Regulations to perfect the
security interest of the Collateral Agent for the benefit of the
Company in the Pledged Security Entitlements.
(vii) Assuming due authorization,
execution and delivery thereof by the Guarantee
Trustee, the Trust Preferred Securities Guarantee
Agreement is a legal, valid and binding agreement of
the Company, enforceable against the Company in
accordance with its terms, subject to the Bankruptcy
Exceptions.
(viii) Assuming due authorization,
execution, and delivery thereof by the Debt Trustee,
the Indenture is a legal, valid and binding
obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the
Bankruptcy Exceptions; and the Indenture, Declaration
and Trust Preferred Securities Agreement have
been duly qualified under the 1939 Act.
(ix) Assuming due authorization,
execution and delivery thereof by the Purchase
Contract Agent, and the Remarketing Agent, the
Remarketing Agreement is a legal, valid and binding
agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the
Bankruptcy Exceptions.
(x) The Securities, the Shares, the
Common Securities, the Debentures, each of the
Guarantees, the Declaration and each of the Guarantee
Agreements conform in all material respects to the
description thereof contained in the Prospectus.
(xi) No filing with, or authorization,
approval, consent, order, registration or
qualification of or with any court or governmental
authority or agency domestic or foreign is required
for the entry into the Purchase Contracts underlying
the Securities, the issuance and sale of the
Securities by the Offerors to the Underwriters, or
the issuance and sale of the Shares by the Company
pursuant to such Purchase Contracts, or the
performance by the Company and the Trust of their
respective obligations under this Agreement, the
Pricing Agreement, the Purchase Contracts, the
Purchase Contract Agreement, the Pledge Agreement,
the Remarketing Agreement, the Indenture, the
Debentures, the Trust Preferred Securities Guarantee
Agreement, the Trust Preferred Securities Guarantee,
the Declaration and the Securities or the securities
offered in
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the Concurrent Offerings, except such as has been
obtained and made under the federal securities laws
or such as may be required under state or foreign
securities or Blue Sky laws.
(xii) The issuance and sale of the
Securities do not contravene the Commodity Exchange
Act or the regulations of the Commodity Futures
Trading Commission.
(xiii) None of the Trust nor the Company
or any of its subsidiaries is, and upon the issuance
and sale of the Securities as herein contemplated and
the application of the net proceeds therefrom as
described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940
Act").
Moreover, such counsel shall confirm that nothing has come to
such counsel's attention that would lead such counsel to
believe that the Registration Statement or any amendment
thereto, including the Rule 430A Information and Rule 434
Information (if applicable), (except for financial statements
and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to
which such counsel need make no statement), at the time such
Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other
financial data included or incorporated by reference therein
or omitted therefrom, as to which such counsel need make no
statement), at the time the Prospectus was issued, at the time
any such amended or supplemented prospectus was issued or at
the Closing Time, 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.
(3) The favorable opinion, dated as of the Closing
Time, of _________________, special German counsel to the
Offerors, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of
such letter for each of the Underwriters to the effect:
(i) Kennametal Xxxxxx XX has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and
authority to own, lease and operate its properties
and to conduct its business as described in the
Prospectus and is duly qualified as a foreign
corporation to transact business and is in good
standing in each
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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 to be in good standing would
not result in a Material Adverse Effect; all of the
issued and outstanding capital stock of Kennametal
Xxxxxx XX has been duly authorized and validly
issued, is fully paid and non-assessable and, to the
best of our knowledge, owned the Company directly or
through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim
or equity; and
(ii) Other than as set forth in the
Prospectus, there are no legal or governmental
proceedings pending to which Kennametal Xxxxxx XX or
any of its subsidiaries is a party or to which any
property of Kennametal Xxxxxx XX or any of its
subsidiaries is the subject which reasonably would be
expected individually or in the aggregate to have a
Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are
threatened or contemplated by governmental
authorities or threatened by others;
(4) The favorable opinion, dated as of the Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
Delaware counsel to the Offerors, in form and substance
satisfactory to counsel for the Underwriters to the effect
that:
(i) The Trust has been created and is
validly existing in good standing as a business trust
under the Delaware Act, and has the business trust
power and authority to conduct its business as
described in the Prospectus.
(ii) The Declaration constitutes a legal,
valid and binding obligation of the Company and is
enforceable against the Company in accordance with
its terms, except that to the extent enforceability
thereof may be limited by the (i) bankruptcy,
insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance and other similar
laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforcement of
provisions related to indemnification.
(iii) Under the Delaware Act and the
Declaration, the Trust has the power and authority to
(i) execute and deliver, and to perform its
obligations under, this Agreement, the Pricing
Agreement and Remarketing Agreement (ii) issue, and
perform its obligations under, the Trust Securities.
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33
(iv) Under the Delaware Act and the
Declaration, the execution and delivery by the Trust
of this Agreement, the Pricing Agreement and the
Remarketing Agreement, and the performance by the
Trust of its obligations hereunder and thereunder,
have been authorized by all necessary action on the
part of the Trust.
(v) The Trust Preferred Securities have been
authorized by the Declaration and, when executed by
the Trust and authenticated by the Institutional
Trustee in accordance with the Declaration and
delivered against payment therefor in accordance with
the terms of this Agreement, will be validly issued
and, subject to qualifications hereinafter expressed,
fully paid and non-assessable undivided beneficial
interests in the assets of the Trust; the Holders of
the Trust Preferred Securities, as beneficial owners
of the Trust, will be entitled to the same limitation
of personal liability extended to stockholders of
private corporations for profit organized under the
General Corporation Law of the State of Delaware;
said counsel may note that the holders of the Trust
Preferred Securities may be obligated to make
payments as set forth in the Declaration.
(vi) The Common Securities have been
authorized by the Declaration and, when issued,
executed and authenticated in accordance with the
terms of the Declaration, and delivered and paid for
as set forth in the Prospectus, will be validly
issued, undivided beneficial interests in the assets
of the Trust.
(vii) Under the Delaware Act and the
Declaration, the issuance of the Trust Securities is
not subject to preemptive or other similar rights.
(viii) None of the execution and delivery by
the Trust of, or the performance by the Trust of its
obligations under, this Agreement, the issuance and
sale of the Trust Preferred Securities by the Trust
in accordance with the terms of this Agreement, the
Remarketing Agreement and the Pricing Agreement, or
the consummation by the Trust of the other
transactions contemplated thereby, will contravene
any provisions of applicable Delaware law or Delaware
administrative regulations or the Certificate of
Trust or the Declaration.
(ix) This Agreement, the Pricing Agreement
and the Remarketing Agreement have been authorized,
executed and delivered by the Trust.
(x) No authorization, approval, consent,
order, registration or qualification of or with any
Delaware state governmental authority or Delaware
state agency is required for the entry into the
Purchase
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Contracts underlying the Securities, the issuance and
sale by the Trust of the Securities to the
Underwriters, or the performance by the Company and
the Trust of their respective obligations under this
Agreement, the Pricing Agreement, the Remarketing
Agreement, the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement, the
Indenture, the Debentures, the Trust Preferred
Securities Guarantee Agreement, the Trust Preferred
Securities Guarantee, the Declaration and the Trust
Securities, except such as has been obtained and made
under the federal securities laws or such as may be
required under state securities or Blue Sky laws.
(5) The favorable opinion, dated as of the Closing
Time, of ________________, counsel to The First National Bank
of Chicago, as Institutional Trustee under the Declaration,
and Guarantee Trustee under the Trust Preferred Securities
Guarantee Agreement, in form and substance satisfactory to
counsel for the Underwriters, together with signed or
reproduced copies of such letter of each of the Underwriters,
to the effect that:
(i) , is a Delaware corporation with
corporate powers, duly organized, validly existing
and in good standing under the laws of the State of
Delaware with all necessary power and authority to
execute and deliver, and to carry out and perform its
obligations under the terms of the Declaration and
the Trust Preferred Securities Guarantee Agreement.
(ii) The execution, delivery and performance
by the Institutional Trustee of the Declaration and
the execution, delivery and performance by the
Guarantee Trustee of the Trust Preferred Securities
Guarantee Agreement have been duly authorized by all
necessary corporate action on the part of the
Institutional Trustee and the Guarantee Trustee,
respectively. The Declaration and the Trust Preferred
Securities Guarantee Agreement have been duly
executed and delivered by the Institutional Trustee
and the Guarantee Trustee, respectively, and
constitute the legal, valid and binding obligations
of the Institutional Trustee and the Guarantee
Trustee, respectively, enforceable against the
Institutional Trustee and the Guarantee Trustee,
respectively, in accordance with their terms, subject
to the Bankruptcy Exceptions.
(iii) The execution, delivery and
performance of the Declaration and the Trust
Preferred Securities Guarantee Agreement by the
Institutional Trustee and the Guarantee Trustee,
respectively, do not conflict with or constitute a
breach of the Articles of Organization or By-laws of
the Institutional Trustee and the Guarantee Trustee,
respectively.
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(iv) No consent, approval or authorization
of, or registration with or notice to, any Delaware
or federal banking authority is required for the
execution, delivery or performance by the
Institutional Trustee and the Guarantee Trustee of
the Declaration and the Trust Preferred Securities
Guarantee Agreement.
(6) The favorable opinion, dated as of the Closing
Time, of , counsel to The First National Bank of
Chicago, as Purchase Contract Agent, in form and substance
satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the
Underwriters, to the effect that:
(i) The Purchase Contract Agent, is duly
incorporated and is validly existing as a banking
corporation with trust powers under the laws of the
United States with all necessary power and authority
to execute, deliver and perform its obligations under
the Purchase Contract Agreement and the Pledge
Agreement.
(ii) The execution, delivery and performance
by the Purchase Contract Agent of the Purchase
Contract Agreement and the Pledge Agreement, and the
authentication and delivery of the Securities have
been duly authorized by all necessary corporate
action on the part of the Purchase Contract Agent.
The Purchase Contract Agreement and the Pledge
Agreement have been duly executed and delivered by
the Purchase Contract Agent, and constitute the
legal, valid and binding obligations of the Purchase
Contract Agent, enforceable against the Purchase
Contract Agent in accordance with its terms, subject
to the Bankruptcy Exceptions.
(iii) the execution, delivery and
performance of the Purchase Contract Agreement and
the Pledge Agreement by the Purchase Contract Agent
does not conflict with or constitute a breach of the
charter or by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization
of, or registration with or notice to, any state or
federal governmental authority or agency is required
for the execution, delivery or performance by the
Purchase Contract Agent of the Purchase Contract
Agreement and the Pledge Agreement.
(7) The opinion of Xxxxxxxx Xxxxxxxxx Professional
Corporation, special tax counsel to the Offerors, generally to
the effect that based upon current law and the assumptions
stated or referred to therein, under current U.S. federal
income tax law: (i) the Trust will be classified as a grantor
trust and not as an association taxable as a corporation; (ii)
the Debentures will be classified as indebtedness of the
Company and (iii) the discussion in the Prospectus under
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the caption "Certain Federal Income Tax Consequences" is a
fair and accurate summary of the matters addressed therein,
based upon current law and the assumptions stated or referred
to therein.
(8) The favorable opinion, dated as of the Closing
Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Underwriters, in form and substance satisfactory to the
Underwriters, with respect to the issuance and sale of the
Securities, and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(9) The favorable opinions, dated as of the Closing
Time, of (i) LeBoeuf, Lamb, Xxxxxx, & XxxXxx L.L.P., special
Connecticut counsel for the Company, (ii) LeBoeuf, Lamb,
Xxxxxx, & XxxXxx L.L.P., special Pennsylvania counsel for the
Company, (iii) Dickinson, Wright, Moon, Van Dusen & Xxxxxxx,
special Michigan counsel for the Company, and (iv) Shook,
Hardy & Bacon, special Kansas counsel for the Company, each in
form and substance satisfactory to the Underwriters, with
respect to the applicability of the "bucket shop" laws of such
states.
(c) At the Closing Time, there shall not have been, since the
date hereof or since the respective date as of which information is
given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or the Company and its subsidiaries,
considered as one enterprise, whether or not in the ordinary course of
business, and the Representatives shall have received a certificate of
the President or a Vice-President of the Company and of the Chief
Financial Officer or Chief Accounting Officer of the Company and a
certificate of a Regular Trustee of the Trust, dated as of the Closing
Time, to the effect that (i) there has been no material adverse change,
(ii) the representations and warranties in Section 1 hereof are true
and correct as though expressly made at and as of the Closing Time,
(iii) the Company and the Trust have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at
or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the
Commission.
(d) At the time of the execution of this Agreement, the
Representatives shall have received from Xxxxxx Xxxxxxxx, LLP a letter
dated such date in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such
letter for each of the Underwriters as to such other matters as the
Representatives may reasonably request.
(e) At the time of the execution of this Agreement, the
Representatives shall have received from Price Waterhouse, LLP a letter
dated such date in form and substance satisfactory to the
Representatives, together with signed or reproduced
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copies of such letter for each of the Underwriters, as to such other
matters as the Representatives may reasonably request.
(f) At the Closing Time, the Representatives shall have
received from Xxxxxx Xxxxxxxx, LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d) of this Section, except
that the specified date referred to shall be a date not more than three
days prior to the Closing Time.
(g) At the Closing Time, the Representatives shall have
received from Price Waterhouse, LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except
that the specified date referred to shall be a date not more than three
days prior to the Closing Time.
(h) At the Closing Time, and at each Date of Delivery, if any,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions herein contained; and all
proceedings taken by the Offerors in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Representatives and counsel for the
Representatives.
(i) At the Closing Time, (i) the Securities shall be rated in
one of the four highest rating categories for preferred stock
("Investment Grade") by any nationally recognized statistical rating
agency, and the Offerors shall have delivered to the Underwriters a
letter, dated the Closing Time, from such nationally recognized
statistical rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have Investment Grade
ratings; (ii) there shall not have occurred any decrease in the rating
assigned to the Securities or any other securities of the Company or of
the financial condition of the Company by any "nationally recognized
statistical rating organization," as defined for purposes of Rule
436(g)(2) under the 1933 Act Regulations, and (iii) no such
organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any other
securities of the Company or of the financial condition of the Company.
(j) At the Closing Time, the Income PRIDES and the Shares
shall have been approved for listing on the New York Stock Exchange
upon notice of issuance.
(k) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Offerors
contained herein and the statements in any certificates furnished by
the Offerors hereunder shall be true and correct as of, and as if made
on, each Date of Delivery, and at the relevant Date of Deliveries:
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(1) the Representatives shall have received:
(i) A certificate, dated such Date of Delivery, of
the President or a Vice-President of the Company and the Chief
Financial Officer or Chief Accounting Officer of the Company
and a certificate of a Regular Trustee of the Trust confirming
that the certificate delivered at the Closing Time pursuant to
Section 5(c) hereof is true and correct as of, and as if made
on, such Date of Delivery.
(ii) The favorable opinion of Xxxxx X. Xxxxx, Vice
President, Secretary, and General Counsel of the Company, in
form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(1) hereof.
(iii) The favorable opinion of Xxxxxxxx Ingersoll
Professional Corporation, special counsel and special tax
counsel for the Offerors, in form and substance satisfactory
to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise to the same
effect as the opinions required by Sections 5(b)(2) and
5(b)(7) hereof.
(iv) The favorable opinion of _____________________,
special German counsel to the Offerors, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery to the same effect as the opinion required by
Section 5(b)(3).
(v) The favorable opinion of Skadden, Arps, Slate,
Xxxxxxx and Xxxx LLP, special Delaware counsel for the
Offerors, in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 5(b)(4) hereof.
(vi) The favorable opinion of , counsel
to The First National Bank of Chicago, as Institutional
Trustee and as Guarantee Trustee, in form and substance
satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the Option Securities and otherwise
to the same effect as the opinion required by Section 5(b)(5)
hereof.
(vii) The favorable opinion of , counsel to The First
National Bank of Chicago, as Purchase Contract Agent, in form
and substance satisfactory to counsel for the Underwriters,
dated such Date of Delivery, relating to the Option Securities
and otherwise to the same effect as the opinion required by
Section 5(b)(6) hereof.
(viii) The favorable opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities
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and otherwise The First National Bank of Chicago an
Institutional Trustee and an Guarantee Trustee to the same
effect as the opinion required by Section 5(b)(8) hereof.
(ix) A letter from Xxxxxx Xxxxxxxx, LLP in form and
substance satisfactory to the Representatives and dated such
Date of Delivery, substantially the same in form and substance
as the letter furnished to the Representatives pursuant to
Section 5(f) hereof, except that the "specified date" in the
letter furnished pursuant to this Section shall be a date not
more than five days prior to such Date of Delivery.
(x) A letter from Price Waterhouse, LLP in form and
substance satisfactory to the Representatives and dated such
Date of Delivery, substantially the same in form and substance
as the letter furnished to the Representatives pursuant to
Section 5(g) hereof, except that the "specified date" in the
letter furnished pursuant to this Section shall be a date not
more than five days prior to such Date of Delivery.
(2) At each Date of Delivery, (i) the Securities shall be
rated in one of the four highest rating categories for preferred stock
("Investment Grade") by any nationally recognized statistical rating
agency, and the Offerors shall have delivered to the Underwriters a
letter, dated such Date of Delivery, from such nationally recognized
statistical rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have Investment Grade
ratings; (ii) there shall not have occurred any decrease in the rating
assigned to the Securities or any other securities of the Company or of
the financial condition of the Company by any "nationally recognized
statistical rating organization," as defined for purposes of Rule
436(g)(2) under the 1933 Act Regulations, and (iii) no such
organization shall have publicly announced that it has under
surveillance or review its rating of the Securities or any other
securities of the Company or of the financial condition of the Company.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement, or, in the case
of any condition to the purchase of Option Securities, on a Date of Delivery
which is after the Closing Time, the obligations of the Representatives to
purchase the relevant Option Securities, may be terminated by the
Representatives by notice to the Company at any time at or prior to the Closing
Time or such Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) The Offerors agree to jointly and severally indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
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(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information deemed to be part
thereof, if applicable, or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in
any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided,
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with
written information furnished to the Offerors by any Underwriter
through Xxxxxxx Xxxxx expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed
the Registration Statement, the Trust and each of its Trustees who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434
Information deemed
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to be a part thereof, if applicable, or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Offerors by such Underwriter through Xxxxxxx Xxxxx expressly for use in
the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by Xxxxxxx Xxxxx and, in the case
of parties indemnified pursuant to section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel
to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under
this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such
litigation investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section
6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior
to such settlement being entered into and (iii) such indemnifying party
shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for
in Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party
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in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (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 hand, from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) 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 hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by Offerors on the one hand,
and the Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Offerors and the total
underwriting discount received by the Underwriters, in each case as set forth on
the cover of the Prospectus, or, if Rule 434 is used, the corresponding location
on the Term Sheet bear to the aggregate initial public offering price of such
Securities as set forth on such cover.
The relative fault of the Offerors, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by 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 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 which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which such Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
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No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company and
each Trustee of the Trust who signed the Registration Statement, and each
person, if any, who controls the Company and the Trust within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Offerors. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the number
of Initial Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement and the Pricing Agreement, or contained in certificates of
officers of the Company or trustees of the Trust submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate this Agreement, by
notice to the Company at any time at or prior to the Closing Time, if (i) there
has been, since the date of this Agreement or since the respective dates as of
which information is given in the Prospectus, any 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, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets or any outbreak of
hostilities or escalation of hostilities or other calamity or crisis, or any
change or development involving a prospective change in national or
international political, financial or economic conditions, the effect of which
is such as to make it, in the judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in the Common Stock or any other security of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on either the American Stock Exchange, the New
York Stock Exchange or in the Nasdaq National Market has been suspended or
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal, New York or Pennsylvania authorities.
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(b) If this Agreement and the Pricing Agreement are terminated
pursuant to this Section 9, such termination shall be without liability of any
party to any other party except as provided in Section 4, and provided, further,
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
SECTION 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing
Time, the obligation of the Underwriters to purchase and of the Company
to sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
Underwriters to purchase and the Company to sell the relevant Option Securities,
as the case may be, either the Representatives or the Company shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Representatives shall be directed to the Representatives c/o Merrill Xxxxx at
Xxxxxxx Xxxxx World Headquarters, World Financial Center, Xxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxx Xxxxxxxxx; notices to
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the Company and the Trust shall be directed to it at Kennametal Inc., Route 981
South at Xxxxxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention of
Xxxxx X. Xxxxx.
SECTION 12. Parties. This Agreement and the Pricing Agreement
shall each inure to the benefit of and be binding upon the Offerors and the
Underwriters and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties hereto and thereto and their respective successors and
legal representatives, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from the Underwriters
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE
PRICING AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME
UNLESS OTHERWISE INDICATED.
SECTION 14. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, shall become a binding
agreement among the Company, the Trust and the Underwriters in accordance with
its terms.
Very truly yours,
KENNAMETAL INC.
By: ____________________________
Name:
Title:
KENNAMETAL FINANCING I
By: ____________________________
Name:
Title: Regular Trustee
By: ____________________________
Name:
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
XXXXXXX, SACHS & CO.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _____________________________
Authorized Signatory:
48
SCHEDULE A
Name of Underwriter Number of
------------------- Initial
Securities
----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.............................
Xxxxxxx, Sachs & Co......................................
----------
Total....................................................
==========
49
SCHEDULE B
KENNAMETAL INC.
(A PENNSYLVANIA CORPORATION)
KENNAMETAL FINANCING I
(A DELAWARE BUSINESS TRUST)
, FELINE PRIDES*
(STATED AMOUNT OF $50 PER SECURITY)
EACH CONSISTING OF
A PURCHASE CONTRACT OF KENNAMETAL INC.
REQUIRING THE PURCHASE ON FEBRUARY 16, 2001
OF CERTAIN SHARES OF CAPITAL STOCK
OF KENNAMETAL INC.
AND
A % TRUST PREFERRED SECURITY
OF KENNAMETAL FINANCING I
PRICING AGREEMENT
January , 1998
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
XXXXXXX, SACHS & CO.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Xxxxx World Headquarters
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Purchase Agreement, dated January __, 1998
(the "Purchase Agreement"), relating to the purchase by the Underwriters named
therein of the
--------
* "FELINE PRIDES" IS A SERVICE XXXX OF XXXXXXX XXXXX & CO., INC.
50
2
above FELINE PRIDES (the "Securities") of Kennametal Inc. (the "Company"), and
Kennametal Financing I (the "Trust").
Pursuant to Section 2 of the Purchase Agreement, the Company and
the Trust agree with each of the Underwriters as follows:
1. The initial public offering price per security for the
Securities, determined as provided in said Section 2, shall be $50.00.
2. The purchase price per security for the Securities to be paid by
the Underwriters shall be $ , being an amount equal to the initial
public offering price set forth above less $ per security.
51
Schedule C
List of Subsidiaries
