2,800,000 Shares
JARDEN CORPORATION
Common Stock
UNDERWRITING AGREEMENT
September 25, 2003
CIBC World Markets Corp.
Banc of America Securities LLC
as Representatives of the several
Underwriters named in Schedule I hereto
c/o CIBC World Markets Corp.
417 5th Avenue, 2nd Floor
New York, New York 10016
Ladies and Gentlemen:
Jarden Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions contained herein, to sell to you
and the other underwriters named on Schedule I to this Agreement (the
"Underwriters"), for whom you are acting as Representatives (the
"Representatives"), an aggregate of 2,800,000 shares (the "Firm Shares") of the
Company's common stock, $0.01 par value per share (the "Common Stock"). The
respective amounts of the Firm Shares to be purchased by each of the several
Underwriters are set forth opposite their names on Schedule I hereto. In
addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 420,000 shares (the "Option Shares") of Common
Stock from the Company for the purpose of covering over-allotments in connection
with the sale of the Firm Shares. The Firm Shares and the Option Shares are
collectively called the "Shares."
The Company has prepared and filed in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
and the published rules and regulations thereunder (the "Rules") adopted by the
Securities and Exchange Commission (the "Commission") a Registration Statement
(as hereinafter defined) on Form S-3 (No. 333-102387), including a preliminary
prospectus relating to the Shares, and such amendments thereof as may have been
required to the date of this Agreement. Copies of such Registration Statement
(including all amendments thereof) and of the related Preliminary Prospectus (as
hereinafter defined) have heretofore been delivered by the Company to you. The
term "Preliminary Prospectus" means the preliminary prospectus dated September
8, 2003 or any subsequent preliminary prospectus included at any time thereafter
as a part of the Registration Statement or filed with the Commission by the
Company pursuant to Rule 424(a) of the Rules. The term "Registration Statement"
as used in this Agreement means the initial registration statement (including
all exhibits, financial schedules and all documents and information deemed to be
a part of the Registration Statement through incorporation by reference or
otherwise), as amended at the time and on the date it becomes effective (the
"Effective Date"), including the information (if any) con-
tained in the form of final prospectus filed with the Commission pursuant to
Rule 424(b) of the Rules and deemed to be part thereof at the time of
effectiveness pursuant to Rule 430A of the Rules. If the Company has filed an
abbreviated registration statement to register additional Shares pursuant to
Rule 462(b) under the Rules (the "462(b) Registration Statement"), then any
reference herein to the Registration Statement shall also be deemed to include
such 462(b) Registration Statement. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement at the time of effectiveness or, if Rule 430A of the Rules is relied
on, the term Prospectus shall also include the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules. Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Securities Act, as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any document filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by reference
in such Preliminary Prospectus or the Prospectus, as the case may be.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representatives
deem advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each Preliminary
Prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
1. Sale, Purchase, Delivery and Payment for the Shares. On the basis of
the representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price of $35.15 per share (the "Initial Price"), the
number of Firm Shares set forth opposite the name of such Underwriter under the
column "Number of Firm Shares to be Purchased from the Company" on Schedule I to
this Agreement, subject to adjustment in accordance with Section 8 hereof.
(b) The Company hereby grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares at the
Initial Price. The number of Option Shares to be purchased by each Underwriter
shall be the same percentage (adjusted by the Representatives to eliminate
fractions) of the total number of Option Shares to be purchased by the
Underwriters as such Underwriter is purchasing of the Firm Shares. Such option
may be exercised only to cover over-allotments in the sales of the Firm Shares
by the Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date (as defined below), and from time to time thereafter within
30 days after the date of this Agreement, in each case upon
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written, facsimile or telegraphic notice, or verbal or telephonic notice
confirmed by written, facsimile or telegraphic notice, by the Representatives to
the Company no later than 12:00 noon, New York City time, on the business day
before the Firm Shares Closing Date or at least two business days before the
Option Shares Closing Date (as defined below), as the case may be, setting forth
the number of Option Shares to be purchased and the time and date (if other than
the Firm Shares Closing Date) of such purchase.
(c) Payment of the purchase price for, and delivery of certificates
for, the Firm Shares shall be made at the offices of CIBC World Markets Corp.,
One World Financial Center, New York, New York 10281, at 10:00 a.m., New York
City time, on the third business day following the date of this Agreement or at
such time on such other date, not later than ten (10) business days after the
date of this Agreement, as shall be agreed upon by the Company and the
Representatives (such time and date of delivery and payment are called the "Firm
Shares Closing Date"). In addition, in the event that any or all of the Option
Shares are purchased by the Underwriters, payment of the purchase price, and
delivery of the certificates, for such Option Shares shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Representatives and the Company, on each date of delivery as specified in the
notice from the Representatives to the Company (such time and date of delivery
and payment are called the "Option Shares Closing Date"). The Firm Shares
Closing Date and any Option Shares Closing Date are called, individually, a
"Closing Date" and, together, the "Closing Dates."
(d) Payment shall be made to the Company by wire transfer of
immediately available funds or by certified or official bank check or checks
payable in New York Clearing House (same day) funds drawn to the order of the
Company, against delivery of the respective certificates to the Representatives
for the respective accounts of the Underwriters of certificates for the Shares
to be purchased by them.
(e) Certificates evidencing the Shares shall be registered in such
names and shall be in such denominations as the Representatives shall request at
least two full business days before the Firm Shares Closing Date or, in the case
of Option Shares, on the day of notice of exercise of the option as described in
Section 1(b) and shall be delivered by or on behalf of the Company to the
Representatives through the facilities of The Depository Trust Company ("DTC")
for the account of such Underwriter. The Company will cause the certificates
representing the Shares to be made available for checking and packaging, at such
place as is designated by the Representatives, on the full business day before
the Firm Shares Closing Date (or the Option Shares Closing Date in the case of
the Option Shares).
(2) Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Firm Shares Closing Date and as of each Option Shares Closing Date (if any), as
follows:
(a) On the Effective Date, the Registration Statement complied, and on
the date of the Prospectus, the date any post-effective amendment to the
Registration Statement becomes effective, the date any supplement or amendment
to the Prospectus is filed with the Commission and each Closing Date, the
Registration Statement and the Prospectus (and any amendment thereof or
supplement thereto) will comply, in all material respects, with the applicable
provisions of the Securities Act and the Exchange Act. The Registration
Statement did
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not, as of the Effective Date, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and on the Effective Date
and the other dates referred to above neither the Registration Statement nor the
Prospectus, nor any amendment thereof or supplement thereto, will contain any
untrue statement of a material fact or will omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the Registration Statement or any
amendment thereto or pursuant to Rule 424(a) of the Rules) and when any
amendment thereof or supplement thereto was first filed with the Commission,
such preliminary prospectus as amended or supplemented complied in all material
respects with the applicable provisions of the Securities Act and the Rules and
did not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If applicable, each Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
If Rule 434 is used, the Company will comply with the requirements of Rule 434
and the Prospectus shall not be "materially different," as such term is used in
Rule 434, from the Prospectus included in the Registration Statement at the time
it became effective. Notwithstanding the foregoing, none of the representations
and warranties in this paragraph 4(a) shall apply to statements in, or omissions
from, the Registration Statement or the Prospectus made in reliance upon, and in
conformity with, information herein or otherwise furnished in writing by the
Representatives on behalf of the several Underwriters for use in the
Registration Statement or the Prospectus. With respect to the preceding
sentence, the Company acknowledges that the only information furnished in
writing by the Representatives on behalf of the several Underwriters for use in
the Registration Statement or the Prospectus is the statements contained in the
third through sixth sentences of the fourth paragraph, the tenth paragraph and
the sixteenth paragraph under the caption "Underwriting" in the Prospectus.
(b) The Registration Statement is effective under the Securities Act
and no stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of the Prospectus has been issued
by the Commission and no proceedings for that purpose have been instituted or
are threatened under the Securities Act. Any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) of the Rules has been or will
be made in the manner and within the time period required by such Rule 424(b).
(c) The documents incorporated by reference in the Registration
Statement and the Prospectus, at the time they became effective or were filed
with the Commission, as the case may be, (i) complied in all material respects
with the requirements of the Securities Act or the Exchange Act, as applicable,
and (ii) when read together with the other information in the Registration
Statement and the Prospectus do not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Any further documents so filed and
incorporated by reference in the Registration Statement and the Prospectus, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Securities Act or
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the Exchange Act, as applicable, and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(d) The financial statements of the Company and of Lehigh Consumer
Products Corporation ("Lehigh") (including all notes and schedules thereto)
included or incorporated by reference in the Registration Statement and
Prospectus present fairly in all material respects the respective financial
position, the statement of operations, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries and of Lehigh at the respective
dates and for the respective periods to which they apply; and such financial
statements and related schedules and notes thereto, and the unaudited financial
information filed with the Commission as part of the Registration Statement,
have been prepared in conformity with generally accepted accounting principles.
The summary and selected financial data included in the Prospectus present
fairly in all material respects the information shown therein as at the
respective dates and for the respective periods specified and have been
presented on a basis consistent with the consolidated financial statements set
forth in the Prospectus and other financial information. The pro forma financial
statements and the related notes thereto included in the Registration Statement
and the Prospectus present fairly in all material respects the information shown
therein, have been prepared in accordance with the Securities Act and the
Exchange Act, and the assumptions used in the preparation thereof are reasonable
and are set forth in the Prospectus and the Registration Statement.
(e) Ernst & Young LLP and PricewaterhouseCoopers LLP, whose reports are
filed with the Commission as a part of the Registration Statement, are and,
during the periods covered by their reports, were independent public accountants
as required by the Securities Act and the Rules.
(f) The Company and each of its subsidiaries, including each entity
(corporation, partnership, joint venture, association or other business
organization) controlled directly or indirectly by the Company, is duly
organized, validly existing and in good standing under the laws of their
respective jurisdictions of incorporation or organization. The Company and each
of its subsidiaries is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which the nature of the business
conducted by it or location of the assets or properties owned, leased or
licensed by it requires such qualification, except for such jurisdictions where
the failure to so qualify individually or in the aggregate could not reasonably
be expected to have a material adverse effect on the assets, properties,
business, financial condition or results of operations of the Company and its
subsidiaries considered as a whole (a "Material Adverse Effect").
(g) The Company and each of its subsidiaries has all requisite
corporate power and authority, and all necessary authorizations, approvals,
consents, orders, licenses, certificates and permits of and from all
governmental or regulatory bodies or any other person or entity (collectively,
the "Permits"), to own, lease and license its assets and properties and conduct
its business, all of which are valid and in full force and effect, except where
the lack of such Permits, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. The Company and each of its
subsidiaries has fulfilled and performed in all ma-
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terial respects all of its material obligations with respect to such Permits and
no event has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material impairment of
the rights of the Company thereunder.
(h) Except as disclosed in the Prospectus, the Company and each of its
subsidiaries owns or possesses legally enforceable rights to use all trademarks,
trademark applications, trade names, service marks, copyrights, copyright
applications, licenses, know-how and other similar rights and proprietary
knowledge (collectively, "Intangibles") necessary for the conduct of its
business taken as a whole, except where the lack of such ownership or possession
could not reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice of, or is not aware
of, any infringement of or conflict with asserted rights of others with respect
to any Intangibles that if determined adversely to the Company or its
Subsidiaries would have a Material Adverse Effect.
(i) The Company and each of its subsidiaries has good and marketable
title in fee simple to all real property, and good and marketable title to all
other property owned by it, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, except such as do not
materially affect the value of such property and do not materially interfere
with the use made or proposed to be made of such property by the Company and its
subsidiaries or except such as could not reasonably be expected to have a
Material Adverse Effect. All property held under lease by the Company and its
subsidiaries is held by them under valid, existing and enforceable leases, free
and clear of all liens, encumbrances, claims, security interests and defects,
except such as are not material and do not materially interfere with the use
made or proposed to be made of such property by the Company and its subsidiaries
and except such as could not reasonably be expected to have a Material Adverse
Effect. Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
Material Adverse Effect; (ii) neither the Company nor any of its subsidiaries
has sustained any loss or interference with its assets, businesses or properties
(whether owned or leased) from fire, explosion, earthquake, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or any
court or legislative or other governmental action, order or decree which would
have a Material Adverse Effect; and (iii) since the date of the latest balance
sheet included or incorporated by reference in the Registration Statement and
the Prospectus, except as disclosed in the Prospectus, neither the Company nor
its subsidiaries has (A) issued any securities or incurred any material
liability or obligation, direct or contingent, for borrowed money, except such
liabilities or obligations incurred in the ordinary course of business, (B)
entered into any material transaction not in the ordinary course of business or
(C) declared or paid any dividend or made any distribution on any shares of its
stock or redeemed, purchased or otherwise acquired or agreed to redeem, purchase
or otherwise acquire any shares of its capital stock.
(j) There is no document, contract or other agreement required to be
described in the Registration Statement or Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required by the Securities Act or Rules. Each description of a contract,
document or other agreement in the Registration Statement and the Prospectus
accurately reflects in all material respects the terms of the underlying
contract, document or other agreement. Each contract, document or other
agreement described in the Registration
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Statement and Prospectus or listed in the Exhibits to the Registration Statement
or incorporated by reference is in full force and effect and is valid and
enforceable by and against the Company or its subsidiary, as the case may be, in
accordance with its terms. Neither the Company nor any of its subsidiaries, if a
subsidiary is a party, nor to the Company's knowledge, any other party is in
default in the observance or performance of any term or obligation to be
performed by it under any such agreement, and no event has occurred which with
notice or lapse of time or both would constitute such a default, in any such
case which default or event, individually or in the aggregate, would have a
Material Adverse Effect. No default exists, and no event has occurred which with
notice or lapse of time or both would constitute a default, in the due
performance and observance of any term, covenant or condition, by the Company or
its subsidiary, if a subsidiary is a party thereto, of any other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which Company or its properties or business or a subsidiary or its properties or
business may be bound or affected which default or event, individually or in the
aggregate, would have a Material Adverse Effect.
(k) Neither the Company nor any of its subsidiaries is in violation of
any term or provision of its charter or by-laws or of any franchise, license,
permit, judgment, decree, order, statute, rule or regulation, where the
consequences of such violation, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(l) This Agreement has been duly authorized, executed and delivered by
the Company.
(m) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the Company of
the Shares) will (i) give rise to a right to terminate or accelerate the due
date of any payment due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or an event which with notice or
lapse of time or both would constitute a default) under, or require any consent
or waiver under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or its subsidiaries
pursuant to the terms of, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which either the Company or its subsidiaries or any of their
properties or businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation applicable to the Company or any of
its subsidiaries except in each such instance where the consequences could not
reasonably be expected to have a Material Adverse Effect or (ii) violate any
provision of the charter or by-laws of the Company or any of its subsidiaries,
except in each case under clauses (i) and (ii) where effective consents or
waivers which have already been obtained and are in full force and effect.
(n) The Company has authorized and outstanding capital stock as set
forth in footnote 1 under the caption "The Offering" in the Prospectus. The
certificates evidencing the Shares are in due and proper legal form and have
been duly authorized for issuance by the Company. All of the issued and
outstanding shares of Common Stock have been duly and validly issued and are
fully paid and nonassessable. There are no statutory preemptive or other similar
rights to subscribe for or to purchase or acquire any shares of Common Stock of
the Company or
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any such rights pursuant to its Certificate of Incorporation or by-laws or any
agreement or instrument to or by which the Company is a party or bound. The
Shares, when issued and sold pursuant to this Agreement, will be duly and
validly issued, fully paid and nonassessable and none of them will be issued in
violation of any preemptive or other similar right. Except as disclosed in the
Registration Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and there is no commitment,
plan or arrangement to issue, any share of stock of the Company or any of its
subsidiaries or any security convertible into, or exercisable or exchangeable
for, such stock. The Common Stock and the Shares conform in all material
respects to all statements in relation thereto contained in the Registration
Statement and the Prospectus. All outstanding shares of capital stock of each of
the Company's subsidiaries have been duly authorized and validly issued, and are
fully paid and nonassessable and are owned directly by the Company or by another
wholly-owned subsidiary of the Company free and clear of any security interests,
liens, encumbrances, equities or claims, other than those described in the
Prospectus.
(o) No holder of any security of the Company has any right, which has
not been waived, to have any security owned by such holder included in the
Registration Statement or to demand registration of any security owned by such
holder for a period of 90 days after the date of this Agreement. Each director
and executive officer of the Company and each stockholder of the Company listed
on Schedule II has delivered to the Representatives his enforceable written
lock-up agreement in the form attached to this Agreement as Exhibit A hereto
("Lock-Up Agreement").
(p) All necessary corporate action has been duly and validly taken by
the Company and to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares by the Company. This Agreement
has been duly and validly authorized, executed and delivered by the Company.
(q) Neither the Company nor any of its subsidiaries is involved in a
labor dispute nor, to the knowledge of the Company, is any labor dispute
threatened, except any dispute which, in either case, could not reasonably be
expected to have a Material Adverse Effect.
(r) No transaction has occurred between or among the Company and any of
its officers or directors, stockholders or any affiliate or affiliates of any
such officer or director or stockholder that is required to be described in and
is not described in the Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
Common Stock or any security of the Company to facilitate the sale or resale of
any of the Shares.
(t) The Company and each of its subsidiaries has (i) filed all Federal,
state, local and foreign tax returns which are required to be filed through the
date hereof (except where the Company or its Subsidiaries has received
extensions thereof), and (ii) paid all taxes shown on such returns and all
assessments received by it to the extent that the same are material and have
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become due, except in each case under clause (i) and (ii) where the failure to
so file or pay could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Company, there are no tax audits or
investigations pending, which if adversely determined could reasonably be
expected to have a Material Adverse Effect; nor to the knowledge of the Company
are there any material proposed additional tax assessments against the Company
or any of its subsidiaries.
(u) The Shares have been duly authorized for listing on the New York
Stock Exchange.
(v) The Company has taken no action intended to, or that could
reasonably be expected to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or listing on the New York Stock
Exchange, nor has the Company received any notification that the Commission or
the New York Stock Exchange is contemplating terminating such registration or
quotation.
(w) The books, records and accounts of the Company and its subsidiaries
accurately and fairly reflect, in all material respects, the transactions in,
and dispositions of, the assets of, and the results of operations of, the
Company and its subsidiaries. The Company and each of its subsidiaries maintains
a system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in accordance with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(x) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are in accordance with normal industry practice in the businesses in
which they are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or the Company's or its
subsidiaries' respective businesses, assets, employees, officers and directors
are in full force and effect; the Company and each of its subsidiaries are in
compliance with the terms of such policies and instruments in all material
respects.
(y) Each approval, consent, order, authorization, designation,
declaration or filing of, by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated required to be obtained or performed by the Company (except such
additional steps as may be required by the National Association of Securities
Dealers, Inc. (the "NASD") or may be necessary to qualify the Shares for public
offering by the Underwriters under the state securities or Blue Sky laws) has
been obtained or made and is in full force and effect.
(z) To the knowledge of the Company, after due inquiry, there are no
affiliations with the NASD among the Company's officers, directors or, to the
knowledge of the Com-
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pany, any five percent or greater stockholder of the Company, except as set
forth in the Registration Statement or otherwise disclosed in writing to the
Representatives.
(aa) Except as otherwise disclosed in the Registration Statement or as
could not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect (i) each of the Company and each of its subsidiaries is
in compliance in all material respects with all rules, laws and regulation
relating to the use, treatment, storage and disposal of toxic substances and
protection of health or the environment ("Environmental Law") which are
applicable to its business; (ii) neither the Company nor its subsidiaries has
received any notice from any governmental authority or third party of an
asserted claim under Environmental Laws; and (iii) each of the Company and each
of its subsidiaries has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its business and
is in compliance with all terms and conditions of any such permit, license or
approval.
(bb) To the knowledge of the Company, based upon the Company's periodic
review of the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which the
Company identifies and evaluates associated costs and liabilities (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). The Company has reasonably concluded
that such associated costs and liabilities could not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(cc) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of proceeds thereof as described in the
Prospectus, will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(dd) None of the Company, nor to the knowledge of the Company, any
director, officer, agent or employee of the Company or its subsidiaries, has,
directly or indirectly, while acting on behalf of the Company or its
subsidiaries (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment.
(ee) Except as described in the Prospectus or in the documents
incorporated by reference into the Prospectus, the Company has not sold or
issued any shares of Common Stock during the six-month period preceding the date
of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares issued pursuant to
employee benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(ff) The Company has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the U.S. Employee Retirement Income
Security Act of 1974
-10-
("ERISA") and the regulations and published interpretations thereunder with
respect to each "plan" as defined in Section 3(3) of ERISA and such regulations
and published interpretations in which its employees are eligible to participate
and each such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations except where failure to be in compliance could not reasonably be
expected to have a Material Adverse Effect. No "Reportable Event" (as defined in
Section 12 of ERISA) has occurred with respect to any "Pension Plan" (as defined
in ERISA) for which the Company could have any liability.
(gg) Each of the Company, its directors and officers has not
distributed and will not distribute prior to the later of (i) the Firm Shares
Closing Date, or the Option Shares Closing Date, and (ii) completion of the
distribution of the Shares, any offering material in connection with the
offering and sale of the Shares other than any Preliminary Prospectus, the
Prospectus, the Registration Statement and other materials, if any, permitted by
the Securities Act.
(hh) The Company (a) has a class of securities registered pursuant to
Section 12(b) of the Exchange Act, (b) has been subject to the requirements of
Section 12 of the Exchange Act and has filed all the material required to be
filed pursuant to Section 13, 14 or 15(d) for a period of at least 36 calendar
months immediately preceding the date hereof and (c) has filed in a timely
manner all reports required to be filed during the 12 calendar months any
portion of a month immediately preceding the date hereof and, if the Company has
used (during the 12 calendar months and any portion of a month immediately
preceding the date hereof) Rule 12b-25(b) under the Exchange Act with respect to
a report or a portion of a report, that report or portion thereof has actually
been filed within the time period prescribed by the rule.
(ii) Neither the Company nor any of its consolidated or unconsolidated
subsidiaries have, since the end of the last fiscal year for which certified
financial statements of the Company and its consolidated subsidiaries were
included in a report filed pursuant to Section 13(a) or 15(d) of the Exchange
Act (a) failed to pay any dividend or sinking fund installment on preferred
stock, or (b) defaulted (i) on any installment or installments on indebtedness
for borrowed money, or (ii) on any rental on one or more long-term leases, which
defaults in the aggregate are material to the financial position of the
registrant and its consolidated and unconsolidated subsidiaries, taken as a
whole.
(jj) The aggregate market value of the voting stock held by
non-affiliates of the Company is $150 million or more, or alternatively, the
aggregate market value of the voting stock held by non-affiliates of the Company
is $100 million or more and the Company has had an annual trading volume of such
stock of three million shares or more. For purposes of this Section, "aggregate
market value" shall be computed by use of the price at which the stock was last
sold or the average of the bid and asked prices of such stock, as of a date
within 60 days prior to the date hereof; and "annual trading volume" shall be
the volume of shares traded in any continuous 12-month period ended within 60
days prior to the date hereof.
(kk) The Shares are of a class of equity securities for which a "bona
fide independent market" (as such term is defined in Rule 2720 of the National
Association of Securities Dealers, Inc. Manual) exists or existed as of the date
of the filing of the Registration Statement, the effective date thereof and the
date hereof.
-11-
(ll) Schedule A attached hereto contains a list of each subsidiary of
the Company that (i) meets the definition of "significant subsidiary" under
Regulation S-X or (ii) is material to the assets, properties, business,
financial condition or the results of operations of the Company and its
subsidiaries, considered as a whole (the "Material Subsidiaries"). Schedule B
attached hereto contains a list of all jurisdictions where the Company is
required to be in good standing, except where the failure of the Company to be
in good standing could not reasonably be expected to have a Material Adverse
Effect (the "Material Jurisdictions").
(mm) The Company and each of its subsidiaries is in material compliance
with the applicable provisions of the Sarbanes-Oxley Act of 2002 that are
effective as of the date hereof.
3. Conditions of the Underwriters' Obligations. The obligations of the
Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) Notification that the Registration Statement has become effective
shall have been received by the Representatives and the Prospectus shall have
been timely filed with the Commission in accordance with Section 4(a) of this
Agreement.
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceedings for such purpose shall be pending before or threatened by the
Commission, and any requests for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the satisfaction of the Commission
and the Representatives. If the Company has elected to rely upon Rule 430A, Rule
430A information previously omitted from the effective Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for filing
pursuant to Rule 424(b) within the prescribed time period and the Company shall
have provided evidence satisfactory to the Underwriters of such timely filing,
or a post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the requirements of
Rule 430A. If the Company has elected to rely upon Rule 434, a term sheet shall
have been transmitted to the Commission for filing pursuant to Rule 424(b)
within the prescribed time period.
(c) The representations and warranties of the Company contained in this
Agreement and in the certificates delivered pursuant to Section 3(d) shall be
true and correct in all material respects when made and on and as of each
Closing Date as if made on such date. The Company shall have performed all
covenants and agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by them at or before such
Closing Date in all material respects.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing Date, of
the chief executive or chief operating officer and the chief financial officer
or chief accounting officer of the Company to the effect that: (i) the
representations, warranties and agreements of the Company in this Agreement were
true and correct when made and are true and correct as of such Closing Date in
all material respects; (ii) the Company has performed all covenants and
agreements and
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satisfied all conditions contained herein in all material respects; (iii) they
have carefully examined the Registration Statement and the Prospectus and, in
their opinion (A) as of the Effective Date, the Registration Statement and
Prospectus did not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and (B) since the Effective Date, to the Company's
knowledge, no event has occurred which should have been set forth in a
supplement or otherwise required an amendment to the Registration Statement or
the Prospectus; and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to their knowledge, no proceedings
for that purpose have been instituted or are pending under the Securities Act.
(e) The Representatives shall have received, at the time this Agreement
is executed and on each Closing Date a signed letter from each of (i) Ernst &
Young LLP and (ii) PricewaterhouseCoopers LLP addressed to the Representatives
and dated, respectively, the date of this Agreement and each such Closing Date,
in form and substance reasonably satisfactory to the Representatives 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.
(f) The Representatives shall have received on each Closing Date from
Kane Kessler, PC, counsel for the Company, an opinion, addressed to the
Representatives and dated such Closing Date, and stating in effect that:
(i) The Company and each of its Material Subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation. Each of the Company and its
Material Subsidiaries is duly qualified to transact business and is in good
standing as a foreign corporation in the Material Jurisdictions.
(ii) The Company and its Material Subsidiaries incorporated in Delaware
has all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus and with respect
to the Company to enter into and perform its obligations under this Agreement
and to issue and sell the Shares .
(iii) The authorized capital stock of the Company is as set forth in
the Registration Statement and the Prospectus in footnote 1 under the caption
"The Offering" as of the dates stated therein and, to such counsel's
knowledge, since such dates, there has been no change in the authorized
capital stock of the Company. The Shares to be issued and sold by the Company
pursuant to this Agreement have been duly authorized for issuance and sale to
the Underwriters pursuant to this Agreement and, when issued and delivered by
the Company pursuant to this Agreement against full payment of the
consideration set forth herein, will be validly issued, fully paid and
nonassessable, and no holder of the Shares is or will be subject to personal
liability by reason of being such a holder. The issuance and sale of the
Shares by the Company is not subject to any preemptive rights of any
securityholder of the Company pursuant to the Material Agreements. To the
best of
-13-
such counsel's knowledge, except as disclosed in the Registration Statement
and the Prospectus, there are no preemptive rights to subscribe for or to
purchase or any restriction upon the voting or transfer of any capital stock
of the Company pursuant to the Company's Certificate of Incorporation or
by-laws or the Material Agreements. The form of certificate used to evidence
the Common Stock complies in all material respects with all applicable
statutory requirements, with any applicable requirements of the Certificate
of Incorporation or By-laws of the Company and the requirements of the New
York Stock Exchange. To such counsel's knowledge, there are no persons with
rights to have any securities registered pursuant to the Registration
Statement by the Company under the Securities Act.
(iv) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares. This Agreement has been
duly and validly authorized, executed and delivered by the Company.
(v) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
by this Agreement will (A) conflict with or result in the breach of any term
or provision of, or constitute a default (or any event which with notice or
lapse of time, or both, would constitute a default) under, or require consent
or waiver under, or result in the execution or imposition of any lien,
charge, claim, security interest or encumbrance upon any properties or assets
of the Company or any Material Subsidiary pursuant to (i) any agreement filed
as an exhibit to the Registration Statement, the Company's Annual Report on
Form 10-K for the year ended December 31, 2002, the Company's Quarterly
Reports on Form 10-Q for the periods ended March 31, 2003 and June 30, 2003
and any Reports on Form 8-K filed by the Company since December 31, 2002
(collectively, the "Material Agreements"), except where the failure to comply
with which could not reasonably be expected to have a Material Adverse
Effect, (ii) any statute, rule or regulation of any governmental agency or
body or any authority of the United States of America or the State of
Delaware applicable to the Company, except where the failure to comply with
which could not reasonably be expected to have a Material Adverse Effect or
(iii) to such counsel's knowledge, any judgment, decree or order of any court
or governmental agency or body of the United States of America or the State
of Delaware applicable to the Company set forth in the officers' certificate
to be attached to such opinion (if any) or (B) contravene any provision of
the Charter or Bylaws of the Company, as amended.
(vi) No consent, approval, authorization, or other order of, or
registration or filing with any court or other governmental agency or
regulatory body is required to be obtained or made by the Company for the
consummation of the transactions contemplated hereby, except such as have
been obtained under the Securities Act in connection with the purchase and
distribution of the Shares by the several Underwriters and from the New York
Stock Exchange in connection with the approval of the Shares for listing.
(vii) The statements in the Registration Statement under Item 15 of
Part II, insofar as such statements constitute a summary of documents
referred to therein or matters
-14-
of law, are accurate in all material respects and accurately present in all
material respects the information with respect to such documents and matters.
(viii) The Registration Statement and the Prospectus and each amendment
or supplement thereto (except for the financial statements and schedules and
other financial data included therein, as to which such counsel expresses no
opinion) comply as to form in all material respects with the requirements of
the Securities Act (except for the financial statements and schedules and
other financial data included therein, as to which such counsel expresses no
opinion) when they became effective or were filed with the Commission, as the
case may be.
(ix) The Registration Statement is effective under the Securities Act,
and based solely upon a telephone call to the Securities and Exchange
Commission, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened, pending or contemplated. Any required filing of
the Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period
required by such Rule 424(b).
(x) The Shares have been approved for listing on the New York Stock
Exchange.
(xi) The capital stock of the Company conforms in all material respects
to the description thereof contained in the first two sentences of the first
paragraph, the third sentence of the first paragraph as modified by the
information contained in the last sentence under the caption "Price Range of
Common Stock and Dividend Policy," the first sentence of the second
paragraph, and the first two sentences of the fourth paragraph, each under
the caption "Description of Capital Stock" of the Prospectus.
(xii) The Company is not an "investment company" or an entity
controlled by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
To the extent deemed advisable by such counsel, such counsel may rely
as to matters of fact on certificates of responsible officers of the Company
and public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws
of the State of New York, the General Corporation Law of the State of
Delaware and the Federal laws of the United States; provided that such
counsel shall state that in their opinion the Underwriters and they are
justified in relying on such other opinions. Copies of such certificates and
other opinions shall be furnished to the Representatives and counsel for the
Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing
-15-
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus (except as specified in the foregoing opinion), on the basis of
the foregoing, no facts have come to the attention of such counsel which lead
such counsel to believe that (i) the Registration Statement at the time it
became effective (except with respect to the financial statements and notes
and schedules thereto and other financial data, as to which such counsel need
express no belief) 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 contained therein not misleading, or that the
Prospectus as amended or supplemented (except with respect to the financial
statements, notes and schedules thereto and other financial data, as to which
such counsel need make no statement) on the date thereof contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading or (ii) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Company, when they
were filed with the Commission, contained, in the case of a registration
statement which became effective under the Securities Act, any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements contained
therein not misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission, any untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(g) The Representatives shall have received on each Closing Date from
Cahill Gordon & Reindel llp, counsel for the Representatives, an opinion,
addressed to the Representatives and otherwise satisfactory to them.
(h) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel.
(i) The Representatives shall have received copies of the Lock-up
Agreements executed by each entity or person listed on Schedule II hereto.
(j) The Shares shall have been approved for listing on the New York
Stock Exchange, subject only to official notice of issuance.
(k) The Representatives shall have received on the date hereof and on
each Option Shares Closing Date a certificate, addressed to the Representatives
and dated as of the date hereof or as of such Closing Date, as the case may be,
of an officer of Lehigh reasonably satisfactory to counsel for the
Representatives.
(l) The Company shall have furnished or caused to be furnished to the
Representatives such further certificates or documents as the Representatives
shall have reasonably requested.
-16-
4. Covenants of the Company.
(a) The Company covenants and agrees as follows:
(i) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and
any amendments thereto, to become effective as promptly as possible. The
Company shall prepare the Prospectus in a form approved by the
Representatives and file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement,
or, if applicable, such earlier time as may be required by the Rules.
(ii) The Company shall promptly advise the Representatives in writing
(A) when any post-effective amendment to the Registration Statement shall
have become effective or any supplement to the Prospectus shall have been
filed, (B) of any request by the Commission for any amendment of the
Registration Statement or the Prospectus or for any additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the institution or
threatening of any proceeding for that purpose and (D) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company shall not file
any amendment of the Registration Statement or supplement to the Prospectus
or any document incorporated by reference in the Registration Statement
unless the Company has furnished the Representatives a copy for its review
prior to filing and shall not file any such proposed amendment or supplement
to which the Representatives reasonably object. The Company shall use its
best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(iii) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall be
necessary to amend or supplement the Prospectus to comply with the Securities
Act or the Rules, the Company promptly shall prepare and file with the
Commission, subject to the second sentence of paragraph (ii) of this Section
4(a), an amendment or supplement which shall correct such statement or
omission or an amendment which shall effect such compliance.
(iv) The Company shall make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 50 days
after the end of the 12-month period beginning at the end of the fiscal
quarter of the Company during which the Effective Date occurs (or 105 days if
such 12-month period coincides with the Company's fiscal year), an earnings
statement (which need not be audited) of the Company, covering such 12-month
period, which shall satisfy the provisions of Section 11(a) of the Securities
Act or Rule 158 of the Rules.
-17-
(v) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration Statement
(including all exhibits thereto and amendments thereof) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto)
and all amendments thereof and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act or the Rules, as
many copies of any preliminary prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request. If applicable, the copies of the Registration Statement
and Prospectus and each amendment and supplement thereto furnished to the
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(vi) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale in connection
with the offering under the laws of such jurisdictions as the Representatives
may designate and shall maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that the
Company shall not be required in connection therewith, as a condition
thereof, to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction or subject itself to taxation as
doing business in any jurisdiction.
(vii) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act and the Rules or the Exchange Act, will
file all reports and other documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time periods
required by the Exchange Act and the regulations promulgated thereunder.
(viii) Without the prior written consent of CIBC World Markets Corp.
and Banc of America Securities LLC, for a period of 90 days after the date of
this Agreement, the Company shall not issue, sell or register with the
Commission (other than on Form S-8 or on any successor form), or otherwise
dispose of, directly or indirectly, any equity securities of the Company (or
any securities convertible into, exercisable for or exchangeable for equity
securities of the Company), except for the issuance of the Shares pursuant to
the Registration Statement or as otherwise described in the section entitled
"Underwriters" in the Registration Statement and the Prospectus. In the event
that during this period, any shares are issued to directors of the Company or
to persons who qualify as "named executive officers" of the Company, as
defined in Item 402 to Regulation S-K, such shares shall be subject to the
Lock-Up Agreement executed by such director or named executive officer.
(ix) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws and by the New York
Stock Exchange.
(x) Prior to the Closing Date, the Company will issue no press release
or other communications directly or indirectly and hold no press conference
with respect to the Company, the condition, financial or otherwise, or the
earnings, business affairs or business prospects of any of them, or the
offering of the Shares without the prior written con-
-18-
sent of the Representatives unless in the judgment of the Company and its
counsel, and after notification to the Representatives, such press release or
communication is required by law.
(xi) The Company will apply the net proceeds from the offering of the
Shares in the manner set forth under "Use of Proceeds" in the Prospectus.
(b) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses incident to
the public offering of the Shares and the performance of the obligations of the
Company under this Agreement including those relating to: (i) the preparation,
printing, filing and distribution of the Registration Statement including all
exhibits thereto, each preliminary prospectus, the Prospectus, all amendments
and supplements to the Registration Statement and the Prospectus and any
document incorporated by reference therein, and the printing, filing and
distribution of this Agreement; (ii) the preparation and delivery of
certificates for the Shares to the Underwriters; (iii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of the various jurisdictions referred to in Section 4(a)(vi), including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such registration and qualification and the preparation, printing,
distribution and shipment of preliminary and supplementary Blue Sky memoranda;
(iv) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section to be so furnished, as may
be reasonably requested for use in connection with the offering and sale of the
Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the
filing fees of the NASD in connection with its review of the terms of the public
offering and reasonable fees and disbursements of counsel for the Underwriters
in connection with such review; (vi) inclusion of the Shares for listing on the
New York Stock Exchange; and (vii) all transfer taxes, if any, with respect to
the sale and delivery of the Shares by the Company to the Underwriters. Subject
to the provisions of Section 7, the Underwriters agree to pay, whether or not
the transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Underwriters under this Agreement not payable by the Company
pursuant to the preceding sentence, including, without limitation, the fees and
disbursements of counsel for the Underwriters.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all losses, claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other Federal or state law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus,
-19-
the Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, or in any Blue Sky application or other information or other
documents executed by the Company filed in any state or other jurisdiction to
qualify any or all of the Shares under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application") or arise out of or are based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
such indemnity shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares to any person by such
Underwriter if such untrue statement or omission or alleged untrue statement or
omission was made in such preliminary prospectus, the Registration Statement or
the Prospectus, or such amendment or supplement thereto, or in any Blue Sky
Application in reliance upon and in conformity with information furnished in
writing to the Company by the Representatives on behalf of any Underwriter
specifically for use therein and provided further that such indemnity shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) on account of any loss, claim, damage or liability arising out of
any such untrue statement or alleged untrue statement or omission or alleged
omission in any Preliminary Prospectus if the Company shall have timely
furnished copies of the Prospectus to such Underwriter and such Underwriter
shall not have given or sent a copy of the Prospectus to the person who
purchased Shares from such Underwriter and who is asserting such loss, claim,
damage or liability, if required by law to have been delivered, at or prior to
the written confirmation of the sale of Shares to such person by such
Underwriter, to the extent that the Prospectus would have cured such defect or
alleged defect giving rise to such loss, claim, damage or liability. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter agrees to indemnify and hold harmless the Company,
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, each director of the
Company, and each officer of the Company who signs the Registration Statement,
against any losses, claims, damages or liabilities to which such party may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
preliminary prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative expressly for use therein; provided, however, that the obligation
of each Underwriter to indemnify the Company (including any controlling person,
director or officer thereof) shall be limited to the net proceeds received by
the Company from such Underwriter.
(c) Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement of any
action, suit or proceeding
-20-
against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section, notify each such indemnifying
party of the commencement of such action, suit or proceeding, enclosing a copy
of all papers served. No indemnification provided for in Section 5(a) or 5(b)
shall be available to any party who shall fail to give notice as provided in
this Section 5(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by the
failure to give such notice but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party for contribution or
otherwise than under this Section. In case any such action, suit or proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such indemnified
party in connection with the defense thereof. The indemnified party shall have
the right to employ its counsel in any such action, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in writing
by the indemnifying parties, (ii) the indemnified party shall have been advised
by counsel that there may be one or more legal defenses available to it which
are different from or in addition to those available to the indemnifying party
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party), it being understood,
however, that the indemnifying parties shall not be liable for the expenses of
more than one separate counsel (in addition to local counsel) representing the
indemnified parties in connection with any one action or related actions in the
same jurisdiction arising out of the same general allegations or circumstances
or (iii) the indemnifying parties shall not have employed counsel to assume the
defense of such action within a reasonable time after notice of the commencement
thereof, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying parties. An indemnifying party shall not be liable
for any settlement of any action, suit, and proceeding or claim effected without
its written consent, which consent shall not be unreasonably withheld or
delayed.
6. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 5(a) or 5(b) is due in accordance with its terms but for any reason is
unavailable to or insufficient to hold harmless an indemnified party in respect
to any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate losses,
liabilities, claims, damages and expenses (including any investigation, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claims asserted, but
after deducting any contribution received by any person entitled hereunder to
contribution from any person who may be liable for contribution) incurred by
such indemnified party, as incurred, in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares pursuant to this
Agreement or, if such allocation is not permitted by applicable law, in
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such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company on the one hand and
the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, no Underwriter (except as may
be provided in the Agreement Among Underwriters) shall be required to contribute
any amount that, in the aggregate, exceeds the total discount and commissions
received by such Underwriter less the amount of damages which such Underwriter
has otherwise been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission. 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. For purposes of this Section 6, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Section 15 of the Securities Act or Section 20
of the Exchange Act, shall have the same rights to contribution as the Company.
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 6, notify such party or parties from whom contribution may be
sought, but the omission so to notify such party or parties from whom
contribution may be sought shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section 6. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 6 are several in proportion to their respective
underwriting commitments and not joint.
7. Termination.
(a) This Agreement may be terminated with respect to the Shares to be
purchased on a Closing Date by the Representatives by notifying the Company at
any time at or before a Closing Date in the absolute discretion of the
Representatives if: (i) there has occurred any material adverse change in the
securities markets or any event, act or occurrence that has materially
disrupted, or in the commercially reasonable judgment of the Representatives,
will in the future materially disrupt, the securities markets or there shall be
such a material adverse
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change in general financial, political or economic conditions or the effect of
international conditions on the financial markets in the United States is such
as to make it, in the judgment of the Representatives, inadvisable or
impracticable to market the Shares or enforce contracts for the sale of the
Shares; (ii) there has occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, inadvisable or impracticable to market the Shares or enforce
contracts for the sale of the Shares; (iii) trading in the Shares or any
securities of the Company has been suspended or materially limited by the
Commission or trading generally on the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. or the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum ranges for prices for securities
shall have been fixed, or maximum ranges for prices for securities have been
required, by said any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc., or any other
governmental or regulatory authority; (iv) a banking moratorium has been
declared by any state or Federal authority; or (v) in the judgment of the
Representatives, there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, a change that could reasonably be expected to have a Material
Adverse Effect.
(b) If this Agreement is terminated pursuant to any of its provisions,
the Company shall not be under any liability to any Underwriter, and no
Underwriter shall be under any liability to the Company, except that (y) if this
Agreement is terminated by the Representatives or the Underwriters because of
any failure, refusal or inability on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the
reasonable fees and disbursements of their counsel) incurred by them in
connection with the proposed purchase and sale of the Shares or in contemplation
of performing their obligations hereunder and (z) no Underwriter who shall have
failed or refused to purchase the Shares agreed to be purchased by it under this
Agreement, without some reason sufficient hereunder to justify cancellation or
termination of its obligations under this Agreement, shall be relieved of
liability to the Company, or to the other Underwriters for damages occasioned by
its failure or refusal.
8. Substitution of Underwriters. If any Underwriter shall default in
its obligation to purchase on any Closing Date the Shares agreed to be purchased
hereunder on such Closing Date, the Representatives shall have the right, within
36 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase such Shares on the terms
contained herein. If, however, the Representatives shall not have completed such
arrangements within such 36-hour period, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Underwriters to purchase such Shares on such
terms. If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives and
the Company as provided above, the aggregate number of Shares which remains
unpurchased on such Closing Date does not exceed 15% of the aggregate number of
all the Shares that all the Underwriters are obligated to purchase on such date,
then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Shares which such Underwriter agreed to purchase
hereunder at such date and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Shares
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which such Underwriter agreed to purchase hereunder) of the Shares of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default. In any such case, either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a period of not
more than seven days in order to effect any necessary changes and arrangements
(including any necessary amendments or supplements to the Registration Statement
or Prospectus or any other documents), and the Company agrees to file promptly
any amendments to the Registration Statement or the Prospectus which in the
opinion of the Company and the Underwriters and their counsel may thereby be
make necessary.
If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives and
the Company as provided above, the aggregate number of such Shares which remains
unpurchased exceeds 10% of the aggregate number of all the Shares to be
purchased at such date, then this Agreement, or, with respect to a Closing Date
which occurs after the First Closing Date, the obligations of the Underwriters
to purchase and of the Company, as the case may be, to sell the Option Shares to
be purchased and sold on such date, shall terminate, without liability on the
part of any non-defaulting Underwriter to the Company, and without liability on
the part of the Company, except as provided in Sections 4(b), 5, 6 and 7. The
provisions of this Section 8 shall not in any way affect the liability of any
defaulting Underwriter to the Company or the nondefaulting Underwriters arising
out of such default. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section 8 with like effect as if such
person had originally been a party to this Agreement with respect to such
Shares.
9. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or the Company or any of their respective officers,
directors or controlling persons referred to in Sections 5 and 6 hereof, and
shall survive delivery of and payment for the Shares. In addition, the
provisions of Sections 4(b), 5, 6 and 7 shall survive the termination or
cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and their respective successors and assigns, and, to
the extent expressed herein, for the benefit of persons controlling any of the
Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed in writing,
(a) if to the Representatives, c/o CIBC World Markets Corp., 417 5th Avenue, 2nd
Floor, New York, New York 10016 Attention: Jay Eastman, with a copy to Cahill
Gordon & Reindel llp, 80 Pine Street, New York, New York 10022, Attention: Roger
Meltzer, Esq. and (b) if to the Company, to its
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agent for service as such agent's address appears on the cover page of the
Registration Statement with a copy to Kane Kessler, PC, 1350 Avenue of the
Americas, 26th Floor, New York, New York 10019, Attention: Robert L. Lawrence,
Esq.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE FULLY
PERFORMED THEREIN. THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL
BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF NEW YORK COUNTY, NEW
YORK. THE PARTIES TO THIS AGREEMENT AGREE THAT ANY BREACH OF ANY TERM OR
CONDITION OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
DEEMED TO BE A BREACH OCCURRING IN THE STATE OF NEW YORK BY VIRTUE OF A FAILURE
TO PERFORM AN ACT REQUIRED TO BE PERFORMED IN THE STATE OF NEW YORK. THE PARTIES
TO THIS AGREEMENT IRREVOCABLY AND EXPRESSLY AGREE TO SUBMIT TO THE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK FOR THE PURPOSE OF RESOLVING ANY DISPUTES
AMONG THE PARTIES RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY, OR ANY JUDGMENT ENTERED BY ANY COURT IN
RESPECT HEREOF BROUGHT IN NEW YORK COUNTY, NEW YORK, AND FURTHER IRREVOCABLY
WAIVE ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDING BROUGHT IN NEW YORK COUNTY,
NEW YORK HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
JARDEN CORPORATION
By: /s/ Desiree DeStefano
---------------------------------------
Name: Desiree DeStefano
Title: Senior Vice President
Confirmed:
CIBC WORLD MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I
annexed hereto.
By: CIBC WORLD MARKETS CORP.
By: /s/ Jay S. Eastman
----------------------------------
Name: Jay S. Eastman
Title: Managing Director
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Thomas M. Morrison
----------------------------------
Name: Thomas M. Morrison
Title: Managing Director
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