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DRAFT OF JULY 26, 1999
8,500,000 Shares
LENNOX INTERNATIONAL INC.
COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
July _____, 1999
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July _____, 1999
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Warburg Dillon Read LLC, a subsidiary of UBS AG
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. International Limited
Credit Suisse First Boston (Europe) Limited
UBS AG, acting through its division Warburg Dillon Read
c/o Morgan Stanley & Co. International Limited
25 Cabot Square
Canary Wharf
London E14 4QA
England
Dear Ladies and Gentlemen:
Lennox International Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below)
hereto, and certain stockholders of the Company (the "SELLING STOCKHOLDERS")
named in Schedule I hereto severally propose to sell to the several
Underwriters, an aggregate of 8,500,000 shares of the Common Stock, par value
$.01 per share, of the Company (the "FIRM SHARES"), of which 8,088,490 shares
are to be issued and sold by the Company and 411,510 shares are to be sold by
the Selling Stockholders, each Selling Stockholder selling the amount set forth
opposite such Selling Stockholder's name in Schedule I hereto.
It is understood that, subject to the conditions hereinafter stated,
6,800,000 Firm Shares (the "U.S. FIRM SHARES") will be sold to the several U.S.
Underwriters named in Schedule II hereto (the "U.S. UNDERWRITERS") in connection
with the offering and sale of such U.S. Firm Shares in the United States (as
defined below) and Canada to United States or Canadian Persons (as defined
below), and 1,700,000 Firm Shares (the "INTERNATIONAL SHARES") will be sold to
the several International Underwriters named in Schedule III hereto (the
"INTERNATIONAL UNDERWRITERS") in connection with the offering and sale of such
International Shares outside the
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United States and Canada to persons other than United States or Canadian
Persons. Morgan Stanley & Co. Incorporated, Credit Suisse First Boston
Corporation and Warburg Dillon Read LLC, a subsidiary of UBS AG, shall act as
representatives (the "U.S. REPRESENTATIVES") of the several U.S. Underwriters,
and Morgan Stanley & Co. International Limited, Credit Suisse First Boston
(Europe) Limited and UBS AG, acting through its division Warburg Dillon Read,
shall act as representatives (the "INTERNATIONAL REPRESENTATIVES") of the
several International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as the "UNDERWRITERS".
"UNITED STATES OR CANADIAN PERSON" shall mean any national or resident
of the United States or Canada, or any corporation, pension, profit-sharing or
other trust or other entity organized under the laws of the United States or
Canada or of any political subdivision thereof (other than a branch located
outside the United States and Canada of any United States or Canadian Person),
and shall include any United States or Canadian branch of a person who is
otherwise not a United States or Canadian Person. "UNITED STATES" shall mean the
United States of America, its territories, its possessions and all areas subject
to its jurisdiction.
The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an additional 1,275,000 shares of its Common Stock,
par value $.01 per share (the "ADDITIONAL SHARES") if and to the extent that the
U.S. Representatives shall have determined to exercise, on behalf of the U.S.
Underwriters, the right to purchase such shares of common stock granted to the
U.S. Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "SHARES". The shares of Common
Stock, par value $.01 per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"COMMON STOCK". The Company and the Selling Stockholders are hereinafter
sometimes collectively referred to as the "SELLERS".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States or
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States or Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter referred to as the "PROSPECTUS". If the Company has filed
an abbreviated registration statement to register additional shares of Common
Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462
REGISTRATION STATEMENT"), then
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any reference herein to the term "REGISTRATION STATEMENT" shall be deemed to
include such Rule 462 Registration Statement.
As part of the offering contemplated by this Agreement, Morgan Stanley
& Co. Incorporated ("MORGAN STANLEY") and certain other Underwriters have agreed
to reserve out of the Shares set forth opposite their names on Schedule II to
this Agreement up to 425,000 shares for sale to the Company's employees,
officers and directors and other parties associated with the Company
(collectively, "PARTICIPANTS"), as set forth in the Prospectus under the heading
"Underwriting" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold by such
Underwriters pursuant to the Directed Share Program (the "DIRECTED SHARES") will
be sold by such Underwriters pursuant to this Agreement at the public offering
price. Any Directed Shares not orally confirmed for purchase by any Participants
by the end of the first business day after the date on which this Agreement is
executed will be offered to the public by such Underwriters as set forth in the
Prospectus.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (1) the
Company and its subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (2) the Company has
not purchased any of its outstanding capital stock in any material
amount nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary and
customary dividends; and (3) there has not been any material change in
the capital stock, short-term debt or long-term debt of the Company and
its subsidiaries, except in each case as described in the Registration
Statement or the Prospectus.
(b) The Company and its subsidiaries have good and valid title
in fee simple to all real property and good and valid title to all
personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not 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 and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus.
(c) The Company and its subsidiaries own or possess adequate
rights in, or can acquire adequate rights in, on reasonable terms, all
material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented
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or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them,
and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
have a material adverse affect on the Company and its subsidiaries,
taken as a whole.
(d) Except as described in the Prospectus, no material labor
dispute with the employees of the Company or any of its subsidiaries
exists, or, to the knowledge of the Company, is imminent;
(e) The Company and its subsidiaries are insured by the
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any of
its subsidiaries (while a subsidiary of the Company) has been refused
any insurance coverage sought or applied for; and neither the Company
nor any of its subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have
a material adverse effect on the Company and its subsidiaries, taken as
a whole, except as described in the Prospectus.
(f) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
business except where the failure to possess such certificates,
authorizations and permits would not have a material adverse effect on
the Company and its subsidiaries taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the Company and its subsidiaries,
taken as a whole, except as described the Prospectus.
(g) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only
in accordance with management's general or specific authorization; and
(4) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(h) The Registration Statement has become effective. No stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(i) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any 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, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(j) The Company has been duly incorporated, 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 its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(k) Each "significant subsidiary" of the Company within the
meaning of Regulation S-X under the Securities Act has been duly
incorporated, 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 its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
all of the issued shares of capital stock of each such significant
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
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(l) This Agreement has been duly authorized, executed and
delivered by the Company.
(m) The authorized capital stock of the Company conforms in
all material respects as to legal matters to the description thereof
contained in the Prospectus.
(n) The shares of Common Stock (including the Shares to be
sold by the Selling Stockholders) outstanding prior to the issuance of
the Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable.
(o) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered against payment therefor in
accordance with the terms of this Agreement, will be validly issued,
fully paid and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights.
(p) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not violate any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except (i) such as may
be required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Shares and, (ii) except as
provided in Section 1(y), such consents, approvals, authorizations,
registrations or qualifications as may be required by the securities
laws of any jurisdiction outside the United States in which the Shares
are offered and sold.
(q) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(r) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
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(s) Each preliminary 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 Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(t) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(u) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except as described in the Prospectus or where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(v) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(w) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement which has not been
waived.
(x) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries will be affected by the Year
2000 problem (that is, any significant risk that computer hardware or
software applications used by the Company and its subsidiaries will
not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000) (the "YEAR 2000 PROBLEM");
and as a result of such review, (i) the Company has no reason to
believe, and does not believe, that (A) there are any issues related to
the
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Company's preparedness to address the Year 2000 Problem that are of a
character required to be described or referred to in the Registration
Statement or Prospectus which have not been accurately described in the
Registration Statement or Prospectus and (B) the Year 2000 Problem will
have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, or result in any material loss
or interference with the business or operations of the Company and its
subsidiaries, taken as a whole; and (ii) the Company reasonably
believes, after due inquiry, that the suppliers, vendors, customers or
other material third parties used or served by the Company and such
subsidiaries are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address the Year
2000 Problem by any supplier, vendor, customer or material third party
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company
and its subsidiaries, taken as a whole.
(y) Furthermore, the Company represents and warrants to Morgan
Stanley and the Underwriters that are selling Shares pursuant to the
Directed Share Program that (i) the Registration Statement, the
Prospectus and any preliminary prospectus comply, and any further
amendments or supplements thereto will comply, with any applicable laws
or regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed at the request of the Company in connection with the
Directed Share Program, and (ii) no authorization, approval, consent,
license, order, registration or qualification of or with any
government, governmental instrumentality or court, other than such as
have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are
offered outside the United States at the request of the Company.
(z) The Company has not offered, or caused the Underwriters to
offer, Shares to any person pursuant to the Directed Share Program with
the specific intent to unlawfully influence (i) a customer or supplier
of the Company to alter the customer's or supplier's level or type of
business with the Company, or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its
products.
2. Representations and Warranties of the Selling Stockholders. Each of
the Selling Stockholders severally represents and warrants to and agrees with
each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of,
and the performance by such Selling Stockholder of its obligations
under, this Agreement, the Custody Agreement dated the date hereof
signed by such Selling Stockholder and the Company, as Custodian,
relating to the deposit of the Shares to be sold by such Selling
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Stockholder (the "CUSTODY AGREEMENT"), and the Power of Attorney dated
the date hereof appointing certain individuals as such Selling
Stockholder's attorneys-in-fact to the extent set forth therein,
relating to the transactions contemplated hereby and by the
Registration Statement (the "POWER OF ATTORNEY"), will not violate any
provision of applicable law, or the trust agreement, testamentary
document or similar document that governs the affairs of such Selling
Stockholder (if such Selling Stockholder is a trust or similar entity),
or any agreement or other instrument binding upon such Selling
Stockholder or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over such Selling Stockholder, and
no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement or the
Custody Agreement or Power of Attorney of such Selling Stockholder,
except (i) for such as may be required by the securities or blue sky
laws of the various states in connection with the offer and sale of the
Shares, (ii) for such consents, approvals, authorizations,
registrations or qualifications as may be required by the securities
laws of any jurisdiction outside the United States in which the Shares
are offered and sold and (iii) for such consents, approvals,
authorizations or qualifications which if not made or obtained, or
violations which if existing, would not adversely affect the
performance of the Selling Stockholder of its obligations hereunder.
(c) Such Selling Stockholder has, and on the Closing Date will
have, valid title to the Shares to be sold by such Selling Stockholder
and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement, the Custody Agreement
and the Power of Attorney and to sell, transfer and deliver the Shares
to be sold by such Selling Stockholder.
(d) The Custody Agreement and the Power of Attorney have been
duly authorized, executed and delivered by such Selling Stockholder and
are valid and binding agreements of such Selling Stockholder.
(e) Upon delivery of and payment for the Shares to be sold by
such Selling Stockholder pursuant to this Agreement, title to such
Shares will pass to the Underwriters free and clear of any security
interests, claims, liens, equities and other encumbrances.
(f) To the extent that any statements or omissions made in the
Registration Statement, any preliminary prospectus, the Prospectus or
any amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, (i) the Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any 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,
(ii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Securities Act
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and the applicable rules and regulations of the Commission thereunder
and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller a U.S. $ ___ a share (the
"PURCHASE PRICE") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as the U.S. Representatives may determine) that
bears the same proportion to the number of Firm Shares to be sold by such Seller
as the number of Firm Shares set forth in Schedule II and Schedule III hereto
opposite the name of such Underwriter bears to the total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 1,275,000
Additional Shares at the Purchase Price. If the U.S. Underwriters, on behalf of
the Underwriters, elect to exercise such option, the U.S. Underwriters shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number of Additional Shares to be
purchased by the U.S. Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 5
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each U.S. Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as the U.S. Underwriters may determine) that bears the same
proportion to the total number of Additional Shares to be purchased as the
number of U.S. Firm Shares set forth in Schedule II hereto opposite the name of
such U.S. Underwriter bears to the total number of U.S. Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, (i) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other
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securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
bona fide gifts of shares of Common Stock by a Selling Stockholder if such
Selling Stockholder delivers to Morgan Stanley & Co. Incorporated a "lockup
letter", in substantially the form of Exhibit A hereto, executed by the donee,
(B) the Shares to be sold hereunder, (C) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security or the vesting of a performance share award outstanding on the date
hereof that are disclosed in the Prospectus or of which the Underwriters have
been advised in writing, (D) the granting by the Company of stock options and/or
performance share awards pursuant to the Company's existing employee benefit
plans provided that such options do not become exercisable during such 180-day
period, (E) the issuance by the Company of up to 5,400,000 shares of Common
Stock in connection with acquisitions or (F) transactions by any person other
than the Company relating to shares of Common Stock or other securities acquired
in open market transactions after the completion of the offering of the Shares.
In addition, each Selling Stockholder, agrees that, without the prior written
consent of Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it
will not, during the period ending 180 days after the date of the Prospectus,
make any demand for, or exercise any right with respect to, the registration of
any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
4. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
$_____________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers
selected by you at a price that represents a concession not in excess of $______
a share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession not in excess of $_____ a share to any
Underwriter or to certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in Federal or other funds immediately
available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on ____________, 1999,(1) or at such other time on the same or such other
date, not later than _________, 1999,(2) as shall be designated in writing by
you. The time and date of such payment are hereinafter referred to as the
"CLOSING DATE".
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the
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(1) Insert date 3 business days or, in the event the offering is priced after
4:30 p.m. Eastern Time, 4 business days after date of Underwriting Agreement.
(2) Insert date 5 business days after the date inserted in accordance with note
1 above.
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respective accounts of the several Underwriters at 10:00 a.m., New York City
time, on the date specified in the notice described in Section 3 or at such
other time on the same or on such other date, in any event not later than
_______, 1999,(3) as shall be designated in writing by you. The time and date of
such payment are hereinafter referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 5:30 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated
in the Prospectus.
- --------
(3) Insert date 10 business days after the expiration of the greenshoe option.
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(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 6(a)(i) above; to
the effect that Lennox Industries Inc., Armstrong Air Conditioning
Inc., Heatcraft Inc., Lennox Global Ltd., Lennox Industries (Canada)
Ltd. and LGL Europe Holding Co. (collectively, the "LENNOX SIGNIFICANT
SUBSIDIARIES") are the only "significant subsidiaries" of the Company
within the meaning of Regulation S-X under the Securities Act; to the
effect that the Company and the Lennox Significant Subsidiaries are
duly qualified to transact business and in good standing in the
jurisdictions indicated on the certificate; to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date; and that the
Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on
or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Baker & Botts, L.L.P., outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, and has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus;
(ii) each of Lennox Global Ltd. and LGL Europe
Holding Co. (the "DELAWARE SUBSIDIARIES") has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, and has the corporate power and authority to
own its property and to conduct its business as described in
the Prospectus;
(iii) the authorized capital stock of the Company
conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus under the
caption "Description of Capital Stock";
(iv) the shares of Common Stock (including the Shares
to be sold by the Selling Stockholders) outstanding prior to
the issuance of the Shares to be sold by the Company have been
duly authorized and are validly issued, fully paid and
non-assessable;
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(v) all of the issued shares of capital stock of the
Delaware Subsidiaries have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned of
record directly or indirectly by the Company;
(vi) the Shares to be sold by the Company have been
duly authorized and, when issued and delivered against payment
therefor in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive
or similar rights arising under the certificate of
incorporation or by-laws of the Company or the General
Corporation Law of the State of Delaware;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not violate any provision of (1)
Applicable Law (as defined below) (provided, however, that
such counsel need express no opinion with respect to
compliance with any federal or state securities or antifraud
law except as otherwise specifically stated in the opinion of
such counsel), (2) the certificate of incorporation or by-laws
of the Company, (3) any agreement or other instrument binding
upon the Company or any of its subsidiaries that is filed as
an exhibit to the Registration Statement or (4) any judgment,
order or decree of any governmental body, agency or court
which has been identified in a certificate provided by the
General Counsel of the Company as being material to the
Company and its subsidiaries, taken as a whole, except for
such violations referred to in clause (1), (2), (3) or (4)
above which, individually or in the aggregate, would not
prevent or adversely affect in any material respect the
performance by the Company of its obligations under this
Agreement or have a material adverse effect on the Company and
its subsidiaries, taken as a whole; no consent, approval,
authorization or order of, or qualification with, any
Applicable Governmental Authority (as defined below) is
required for the performance by the Company of its obligations
under this Agreement, except (x) such as have been obtained or
made or (y) such as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Shares by the U.S. Underwriters;
(ix) the statements (A) in the Prospectus under the
captions "Business-Regulation," "Description of Capital Stock"
and "Shares Eligible for Future Sale" and (B) in the
Registration Statement in Item 14, in each case insofar as
such statements constitute summaries of the legal matters or
documents referred to therein, fairly present, in all material
respects, the information called for with respect to such
legal matters and documents;
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(x) to such counsel's knowledge, relying as to
factual matters only on certificates of officers of the
Company, (A) there are no legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described, and (B) there are no
statutes or regulations of the United States of America or the
State of Texas or (solely with respect to the General
Corporation Law of the State of Delaware) the State of
Delaware, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement that are
not described or filed as required;
(xi) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be
an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended; and
(xii) the Registration Statement and Prospectus
(except for financial statements (including the notes thereto
and auditors' report thereon) and schedules and other
financial and statistical data included therein as to which
such counsel need not express any opinion) appear on their
face to comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
Such counsel shall also include statements to the following
effect: Such counsel has participated in conferences with officers and
other representatives of the Company, representatives of the
independent public accountants and your representatives at which the
contents of the Registration Statement and Prospectus and related
matters were discussed. Although such counsel did not independently
verify such information and is not passing on, and does not assume any
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
(except to the extent stated in subparagraphs (iii) and (ix) of this
paragraph (c)), such counsel advises you that, on the basis of the
foregoing (relying as to materiality as to matters of fact in part upon
officers and other representatives of the Company), no facts have come
to the attention of such counsel which lead such counsel to believe
that the Registration Statement (except for (A) the financial
statements (including the notes thereto and the auditors' reports
thereon) and schedules included therein, (B) the other financial and
statistical information included therein and (C) the exhibits thereto,
as to which such counsel has not been asked to comment), as of the time
it became effective, contained any 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 (except for (x) the financial statements (including the
notes thereto
-15-
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and the auditors' reports thereon) included therein and (y) the other
financial and statistical information included therein, as to which
such counsel has not been asked to comment), as of the issue date
thereof or as of the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
"Applicable Laws" means the General Corporation Law of the
State of Delaware, the laws of the State of Texas and the laws of the
United States of America that, in the experience of such counsel, are
normally applicable to transactions of the type contemplated by this
Agreement. "Applicable Governmental Authority" means any governmental
body, agency or court of the United States of America or the State of
Texas or (solely with respect to the General Corporation Law of the
State of Delaware) the State of Delaware.
(d) The Underwriters shall have received on the Closing Date
an opinion of Carl E. Edwards, general counsel to the Company, dated
the Closing Date, to the effect that:
(i) each of Lennox Industries Inc., Armstrong Air
Conditioning Inc. and Heatcraft Inc. has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, and has the corporate power and authority to
own its property and to conduct its business as described in
the Prospectus;
(ii) all the issued shares of capital stock of the
Significant Subsidiaries have been duly and validly authorized
and issued, are fully paid and non-assessable and are owned
(A) of record directly or indirectly by the Company and, (B)
to such counsel's knowledge, free and clear of all liens,
encumbrances, equities or claims that are (x) evidenced or
created by any agreement or other instrument binding on the
Company or a Significant Subsidiary or (y) material tax liens
other than for taxes not yet due and payable; and
(iii) the statements in the Registration Statement in
Item 15, insofar as such statements constitute summaries of
the legal matters or documents referred to therein, fairly
present, in all material respects, the information called for
with respect to such legal matters and documents.
(e) The Underwriters shall have received on the Closing Date
an opinion of _______________________, Canadian counsel to the Company,
dated the Closing Date, to the effect that:
(i) Lennox Industries (Canada) Ltd. has been duly
incorporated, is
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validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, and has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus; and
(ii) All of the issued shares of capital stock of
Lennox Industries (Canada) Ltd. have been duly and validly
authorized and issued, are fully paid and non-assessable and
owned of record directly or indirectly by the Company.
(f) The Underwriters shall have received on the Closing Date,
with respect to each Selling Stockholder who is a natural person (the
"INDIVIDUAL SELLING STOCKHOLDERS"), and, for the opinions set forth in
Sections (e)(iii) and (e)(vi), with respect to each Selling
Stockholder, an opinion of Baker & Botts, L.L.P., dated the Closing
Date, to the effect that:
(i) this Agreement has been duly executed and
delivered by each Individual Selling Stockholder;
(ii) the execution and delivery by each Individual
Selling Stockholder of, and the performance by such Individual
Selling Stockholder of its obligations under, this Agreement
and the Custody Agreement and Power of Attorney of such
Individual Selling Stockholder will not violate any provision
(A) of Applicable Law, (B) any agreement or other instrument
binding upon such Individual Selling Stockholder that has been
identified in a certificate provided by such Individual
Selling Stockholder as material to the transactions
contemplated by this Agreement or (C) any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over such Individual Selling Stockholder that has
been identified in a certificate provided by such Individual
Selling Stockholder as being material to such Individual
Selling Stockholder; no consent, approval, authorization or
order of, or qualification with, any Applicable Governmental
Authority is required for the performance by each Individual
Selling Stockholder of its obligations under this Agreement or
the Custody Agreement or Power of Attorney of such Individual
Selling Stockholder, except (x) such as have been obtained or
made or (y) such as may be required by the securities or blue
sky laws of the various states in connection with the offer
and sale of the Shares;
(iii) each Selling Stockholder is the sole registered
holder of the Shares to be sold by such Selling Stockholder;
(iv) each Individual Selling Stockholder has the
legal right and power, and all authorization and approval
required by law, to enter into this Agreement and the Custody
Agreement and Power of Attorney of such Individual Selling
Stockholder and to sell, transfer and deliver the Shares to be
sold by such Individual Selling Stockholder pursuant to this
Agreement;
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(v) the Custody Agreement and the Power of Attorney
of each Individual Selling Stockholder have been duly executed
and delivered by such Individual Selling Stockholder and are
valid and binding agreements of such Individual Selling
Stockholder, except as limited by applicable bankruptcy,
moratorium, insolvency, other similar laws affecting generally
the rights of creditors, by principles of equity (regardless
of whether such enforcement is considered in a proceeding at
law or in equity) or by public policy; and
(vi) upon delivery of the Shares to be sold by each
Selling Stockholder under this Agreement and payment of the
purchase price therefor in accordance with this Agreement,
assuming that (A) the Underwriters have purchased such Shares
without notice of any "adverse claim" (within the meaning of
the Uniform Commercial Code) and (B) certificates evidencing
such Shares have been registered in the name of the
Underwriters or certificates evidencing the same which are
registered in the name of such Selling Stockholder have been
delivered to the Underwriters duly endorsed for transfer (or
accompanied by duly executed stock powers or other forms of
assignment in proper form for transfer), the Underwriters will
acquire such shares free of any "adverse claim" (within the
meaning of the Uniform Commercial Code).
(g) The Underwriters shall have received on the Closing Date,
with respect to the following Selling Stockholders: the Robert W.
Norris Revocable Trust, the Christina Marie Damman 1991 Revocable Trust
and the Nicholas W. Norris 1991 Revocable Trust, an opinion of Peabody
& Arnold, dated the Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed
and delivered by or on behalf of each such Selling
Stockholder;
(ii) the execution and delivery by each such Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Custody Agreement and Power of Attorney of such Selling
Stockholder will not violate any provision (A) of the laws of
the State of Massachusetts and the laws of the United States
of America that, in the experience of such counsel, are
normally applicable to transactions of the type contemplated
by this Agreement, (B) the trust agreement, testamentary
document or similar document that governs the affairs of such
Selling Stockholder, (C) any agreement or other instrument
binding upon such Selling Stockholder that has been identified
in a certificate provided by such Selling Stockholder as
material to the transactions contemplated by this Agreement or
(D) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over such Selling
Stockholder that has been identified in a certificate provided
by such Selling Stockholder as being material to such Selling
Stockholder; no consent, approval,
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authorization or order of, or qualification with, any
governmental body, agency or court of the United States of
America or the State of Massachusetts is required for the
performance by each such Selling Stockholder of its
obligations under this Agreement or the Custody Agreement or
Power of Attorney of such Selling Stockholder, except (x) such
as have been obtained or made or (y) such as may be required
by the securities or blue sky laws of the various states in
connection with the offer and sale of the Shares;
(iii) each such Selling Stockholder has the legal
right and power, and all authorization and approval required
by law, to enter into this Agreement and the Custody Agreement
and Power of Attorney of such Selling Stockholder and to sell,
transfer and deliver the Shares to be sold by such Selling
Stockholder pursuant to this Agreement;
(iv) the Custody Agreement and the Power of Attorney
of each such Selling Stockholder have been duly executed and
delivered by such Selling Stockholder and are valid and
binding agreements of such Selling Stockholder, except as
limited by applicable bankruptcy, moratorium, insolvency,
other similar laws affecting generally the rights of
creditors, by principles of equity (regardless of whether such
enforcement is considered in a proceeding at law or in equity)
or by public policy;
(h) The Underwriters shall have received on the Closing Date,
with respect to the following Selling Stockholder: the David Anderson
Trust, an opinion of Hahn & Hahn, dated the Closing Date, to the effect
that:
(i) this Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder;
(ii) the execution and delivery by such Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Custody Agreement and Power of Attorney of such Selling
Stockholder will not violate any provision (A) of the laws of
the State of California and the laws of the United States of
America that, in the experience of such counsel, are normally
applicable to transactions of the type contemplated by this
Agreement, (B) the trust agreement, testamentary document or
similar document that governs the affairs of such Selling
Stockholder, (C) any agreement or other instrument binding
upon such Selling Stockholder that has been identified in a
certificate provided by such Selling Stockholder as material
to the transactions contemplated by this Agreement or (D) any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Stockholder that
has been identified in a certificate provided by such Selling
Stockholder as being material to such Selling Stockholder; no
consent, approval, authorization or order
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of, or qualification with, any governmental body, agency or
court of the United States of America or the State of
California is required for the performance by each such
Selling Stockholder of its obligations under this Agreement or
the Custody Agreement or Power of Attorney of such Selling
Stockholder, except (x) such as have been obtained or made or
(y) such as may be required by the securities or blue sky laws
of the various states in connection with the offer and sale of
the Shares;
(iii) such Selling Stockholder has the legal right
and power, and all authorization and approval required by law,
to enter into this Agreement and the Custody Agreement and
Power of Attorney of such Selling Stockholder and to sell,
transfer and deliver the Shares to be sold by such Selling
Stockholder pursuant to this Agreement; and
(iv) the Custody Agreement and the Power of Attorney
of each such Selling Stockholder have been duly executed and
delivered by such Selling Stockholder and are valid and
binding agreements of such Selling Stockholder, except as
limited by applicable bankruptcy, moratorium, insolvency,
other similar laws affecting generally the rights of
creditors, by principles of equity (regardless of whether such
enforcement is considered in a proceeding at law or in equity)
or by public policy.
(i) The Underwriters shall have received on the Closing Date
an opinion of Fulbright & Jaworski L.L.P., counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 6(c)(vi), 6(c)(vii), 6(c)(ix) (but only as to the
statements in the Prospectus under "Description of Capital Stock" and
"Underwriters") and 6(c)(xii) above and the penultimate paragraph of
Section 6(c) above.
With respect to Section 6(c) above, Baker & Botts, L.L.P. may
rely upon an opinion or opinions of counsel for any Selling
Stockholders and, with respect to factual matters and to the extent
such counsel deems appropriate, upon the representations of each
Selling Stockholder contained herein and in the Custody Agreement and
Power of Attorney of such Selling Stockholder and in other documents
and instruments; provided that (A) each such counsel for the Selling
Stockholders is satisfactory to the U.S. Underwriters' counsel, (B) a
copy of each opinion so relied upon is delivered to the U.S.
Underwriters and is in form and substance satisfactory to the U.S.
Underwriters' counsel, and (C) copies of such Custody Agreements and
Powers of Attorney and of any such other documents and instruments
shall be delivered to the U.S. Underwriters and shall be in form and
substance satisfactory to the U.S. Underwriters' counsel.
The opinions of Baker & Botts, L.L.P. described in Sections
6(c) and 6(f) above, the opinion of Carl E. Edwards described in
Section 6(d) above, the opinion of [Canadian counsel] described in
Section 6(e) above, the opinion of Hahn & Hahn described in
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Section 6(g) above, the opinion of Peabody & Arnold described in
Section 6(h) above and any opinions of counsel for any Selling
Stockholder referred to in the immediately preceding paragraph shall
be rendered to the Underwriters at the request of the Company or one
or more of the Selling Stockholders, as the case may be, and shall so
state therein.
(j) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, from Arthur Andersen LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(k) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and certain stockholders, officers and
directors of the Company relating to sales and certain other
dispositions of shares of Common Stock or certain other securities,
delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as the
U.S. Representatives may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the issuance of the
Additional Shares.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, such number of signed
copies of the Registration Statement (including exhibits thereto) as
you may reasonably request and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto)
and to furnish to you in New York City, without charge, prior to 5:00
p.m. New York City time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section 7(c) below,
as many copies of the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
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(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of
counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or blue sky laws of such jurisdictions as you shall
reasonably request; provided, however, that the Company shall not be
obligated (i) to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified, (ii) to take any action that would
subject it to taxation in any jurisdiction or (iii) to execute a
consent to service of process under the laws of any jurisdiction
(except service of process with respect to the offering and sale of
Shares).
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering
the twelve-month period ending [SEPTEMBER 30,] 2000 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) That in connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to the
extent required by the National Association of Securities Dealers, Inc.
(the "NASD") or the NASD rules from sale, transfer, assignment, pledge
or hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. Morgan Stanley will notify
the Company as to which Participants will need to be so restricted. The
Company will direct the transfer agent of the Common Stock to place
stop transfer restrictions upon such securities for such period of
time.
(g) To pay all fees and disbursements of Belgian, Canadian and
Australian counsel incurred by the Underwriters in connection with the
Directed Share Program and stamp duties, similar taxes or duties or
other taxes, if any, incurred by the Underwriters in connection with
the Directed Share Program.
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(h) Furthermore, the Company covenants with Morgan Stanley
that the Company will comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed
Share Program.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Sellers agree to
pay or cause to be paid all expenses incident to the performance of their
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel, the Company's accountants and counsel for the
Selling Stockholders in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the cost of printing or producing any blue
sky or legal investment memorandum in connection with the offer and sale of the
Shares under state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(d) hereof, including filing fees and the reasonable fees
(not in excess of $2,000) and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the blue sky or legal
investment memorandum, (iv) all filing fees and the fees (not in excess of
$7,500) and reasonable disbursements of counsel to the Underwriters (including
counsel fees incurred on behalf of or disbursements by Morgan Stanley in its
capacity as a "qualified independent underwriter") incurred in connection with
the review and qualification of the offering of the Shares by the NASD, (v) all
fees and expenses incurred in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all costs
and expenses incident to listing the Shares on the New York Stock Exchange and
other national securities exchanges and foreign stock exchanges, (vi) the cost
of printing certificates representing the Shares, (vii) the costs and charges of
any transfer agent, registrar or depositary of the Shares, (viii) the costs and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show, (ix) all fees and disbursements of Belgian,
Canadian and Australian counsel incurred by the Underwriters in connection with
the Directed Share Program and stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the Directed
Share Program, and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that, except as
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provided in this Section, Section 9, and the last paragraph of Section 11 below,
the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they
may make.
The provisions of this Section shall not supersede or otherwise affect
any agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities
purchased Shares, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company with Section 7(a)
hereof.
The Company also agrees to indemnify and hold harmless Morgan
Stanley & Co. Incorporated ("MORGAN STANLEY") and each person, if any,
who controls Morgan Stanley within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities and judgments incurred as a result
of Morgan Stanley's participation as a "qualified independent
underwriter" within the meaning of Rule 2720 of the National
Association of Securities Dealers'
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Conduct Rules in connection with the offering of the Shares, except
for any losses, claims, damages, liabilities and judgments resulting
from Morgan Stanley's, or such controlling person's, willful
misconduct.
(b) The Company agrees to indemnify and hold harmless Morgan
Stanley, each other Underwriter that sells Shares pursuant to the
Directed Share Program and each of their affiliates (including each
person, if any, that controls Morgan Stanley or such Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) (collectively, the "DIRECTED SHARE UNDERWRITERS")
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in the prospectus wrapper
material prepared by or with the consent of the Company for
distribution in foreign jurisdictions in connection with the Directed
Share Program attached to the Prospectus or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement therein, when considered in conjunction with the Prospectus
or any applicable preliminary prospectus, not misleading; (ii) caused
by the failure of any Participant to pay for and accept delivery of the
shares which, immediately following the effectiveness of the
Registration Statement, were subject to a properly confirmed agreement
to purchase; or (iii) related to, arising out of, or in connection with
the Directed Share Program, provided that the Company shall not be
responsible under this subparagraph (iii) for any losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross
negligence of Directed Share Underwriters; provided, however, that the
foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Directed Share
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, or any affiliate of such
Directed Share Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on
behalf of such Directed Share Underwriter to such person, if required
by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company with Section 7(a)
hereof.
(c) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any
such action or claim) caused by any
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untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only with reference to
information relating to such Selling Stockholder furnished to the
Company in writing by or on behalf of such Selling Stockholder
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto;
provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 7(a) hereof; provided,
further, however, that with respect to any amount due an indemnified
person under this paragraph (c), each Selling Stockholder shall be
liable only to the extent of the net proceeds received by such Selling
Stockholder from such Selling Stockholder's Shares.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders, the
directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by or on behalf of such Underwriter through you
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(e) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 9(a), 9(b), 9(c) or
9(d), such person (the "INDEMNIFIED PARTY") shall promptly
-26-
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notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for (x) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if
any, who control any Underwriter within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act, (y) the
fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section and (z) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Selling Stockholders and all persons, if any, who
control any Selling Stockholder within the meaning of either such
Section, and that all such fees and expenses shall be reimbursed as
they are incurred. Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to the second paragraph
of Section 9(a) hereof in respect of such action or proceeding, then in
addition to such separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses
of not more than one separate firm (in addition to any local counsel)
for Morgan Stanley in its capacity as a "qualified independent
underwriter" and all persons, if any, who control Morgan Stanley within
the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act. In the case of any such separate firm for the
Underwriters and such control persons of any Underwriters, such firm
shall be designated in writing by Morgan Stanley. In the case of any
such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the
Selling Stockholders and such control persons of any Selling
Stockholders, such firm shall be designated in writing by the persons
named as attorneys-in-fact for the Selling Stockholders under the
Powers of Attorney. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or
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threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(f) To the extent the indemnification provided for in Section
9(a), 9(b), 9(c) or 9(d) is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause 9(f)(i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 9(f)(i)
above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Sellers on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of
the Shares (before deducting expenses) received by each Seller and the
total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Sellers 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 Sellers or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 9 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(g) The Sellers and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9,
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(i) no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds
the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (ii) no Selling Stockholder shall be
required to contribute any amount in excess of the amount by which the
proceeds received by such Selling Stockholder in connection herewith
exceed the aggregate amount such Selling Stockholder has otherwise been
requested to pay pursuant hereto. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(h) The indemnity and contribution provisions contained in
this Section 9 and the representations, warranties and other statements
of the Company and the Selling Stockholders contained in this Agreement
shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter, any person controlling any Underwriter, any
affiliate of any Underwriter that is selling Shares pursuant to the
Directed Share Program, any Selling Stockholder or any person
controlling any Selling Stockholder, or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Shares.
10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 10(a)(i) through 10(a)(iv), such event, singly
or together with any other such event, makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the
Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more
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of the Underwriters shall fail or refuse to purchase Shares that it has or they
have agreed to purchase hereunder on such date, and the aggregate number of
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the aggregate number of the
Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule II and Schedule III bears to the aggregate
number of Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Stockholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholders. In any such case either you or the relevant Sellers shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Shares or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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13. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
LENNOX INTERNATIONAL INC.
By:
--------------------------------
Name:
Title:
The Selling Stockholders
named in Schedule I hereto,
acting severally
By:
--------------------------------
Attorney-in-Fact
Accepted as of the date hereof
MORGAN STANLEY & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
WARBURG DILLON READ LLC, a subsidiary of UBS AG
Acting severally on behalf of themselves
and the several U.S. Underwriters named
in Schedule II hereto.
By: Morgan Stanley & Co. Incorporated
By:
--------------------------------
Name: John F. Spence
Title: Principal
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
UBS AG, acting through its division Warburg Dillon Read
Acting severally on behalf of themselves and the
several International Underwriters named in
Schedule III hereto.
By: Morgan Stanley & Co. International Limited
By:
--------------------------------
Name: John F. Spence
Title: Principal
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SCHEDULE I
SELLING STOCKHOLDERS
NUMBER OF
FIRM SHARES
SELLING STOCKHOLDER TO BE SOLD
David Anderson Trust ........................................... 165,000
David W. Zink .................................................. 81,675
Frank E. Zink .................................................. 66,000
Eileen F. Murphy ............................................... 33,000
Robert W. Norris Revocable Trust ............................... 33,000
Christina Marie Damman 1991 Revocable Trust .................... 13,200
Nicholas W. Norris 1991 Revocable Trust ........................ 9,900
Zink Family Irrevocable Trust .................................. 3,399
Thomas R. Thompson ............................................. 1,980
Steven P. Miller ............................................... 1,683
David S. Miller ................................................ 1,683
William N. Consler ............................................. 990
-------
Total Firm Shares ....................................
=======
34
SCHEDULE II
U.S. UNDERWRITERS
NUMBER OF
FIRM SHARES
U. S. UNDERWRITER TO BE PURCHASED
Morgan Stanley & Co. Incorporated.................................
Credit Suisse First Boston Corporation ...........................
Warburg Dillon Read LLC, a subsidiary of UBS AG...................
[NAMES OF OTHER UNDERWRITERS]
--------------
Total U.S. Firm Shares........
==============
35
SCHEDULE III
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM SHARES
INTERNATIONAL UNDERWRITER TO BE PURCHASED
Morgan Stanley & Co. International Limited..........................
Credit Suisse First Boston (Europe) Limited.........................
UBS AG, acting through its division Warburg Dillon Read.............
[NAMES OF OTHER UNDERWRITERS]
---------------
Total International Firm Shares ........
===============
36
EXHIBIT A
FORM OF LOCK-UP LETTER
________________, 1999
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Warburg Dillon Read LLC
Morgan Stanley & Co. International Limited
Credit Suisse First Boston (Europe) Limited
UBS AG acting through its division
Warburg Dillon Read
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. Incorporated and
Morgan Stanley & Co. International Limited (collectively "MORGAN STANLEY")
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
with Lennox International Inc., a Delaware corporation (the "COMPANY"),
providing for the public offering (the "PUBLIC OFFERING") by the several
Underwriters, including Morgan Stanley (the "UNDERWRITERS"), of ______________
shares (the "SHARES") of the common stock, par value $.01 per share, of the
Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Morgan
Stanley on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
Common Stock, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise; PROVIDED, HOWEVER, that the undersigned shall be permitted to make
a bona fide gift of shares of Common Stock during such period if the undersigned
delivers to Morgan Stanley a letter substantially similar to this letter
executed by the donee. The foregoing sentence shall not apply to (a) the sale of
any Shares to the Underwriters pursuant to the Underwriting Agreement or (b)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering. In
addition, the undersigned agrees that, without the prior written consent of
Morgan Stanley on behalf of the Underwriters, it will not, during the period
commencing on the date
37
hereof and ending 180 days after the date of the Prospectus, make any demand for
or exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
--------------------------------
(Name)
--------------------------------
(Address)