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8-K - FORM 8-K - Cooper Industries plc | h78182e8vk.htm |
Exhibit 1.1
$500,000,000
COOPER US, INC.
2.375% Senior Notes due 2016
3.875% Senior Notes due 2020
2.375% Senior Notes due 2016
3.875% Senior Notes due 2020
guaranteed by
COOPER INDUSTRIES plc
(and specified subsidiaries)
(and specified subsidiaries)
Underwriting Agreement
December 2, 2010
Citigroup Global Markets Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As Representatives of the several Underwriters | ||
c/o | Citigroup Global Markets Inc. 388 Greenwich Street New York, New York 10013 |
Ladies and Gentlemen:
Introductory. Cooper US, Inc. a Delaware corporation (the Company), proposes to
issue and sell to the several underwriters named in Schedule A (the Underwriters), acting
severally and not jointly, the respective amounts set forth in such Schedule A of (i) $250,000,000
aggregate principal amount of the Companys 2.375% Senior Notes due 2016 (the 2016 Notes)
and (ii) $250,000,000 aggregate principal amount of the Companys 3.875% Senior Notes due 2020 (the
2020 Notes and together with the 2016 Notes, the Notes). Citigroup Global
Markets Inc., Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated have
agreed to act as representatives of the several Underwriters (in such capacity, the
Representatives) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture (the Base Indenture) to be dated
as of the Closing Date (as defined below), between the Company, Cooper Industries plc, a company
existing under the laws of Ireland (Parent), Cooper Industries, Ltd., a company existing
under the laws of Bermuda, Cooper B-Line, Inc., Cooper Bussmann, LLC, Cooper Crouse-Hinds, LLC,
Cooper Lighting, LLC, Cooper Power Systems, LLC and Cooper Wiring Devices, Inc. (each a
Subsidiary Guarantor, collectively the Subsidiary Guarantors and, together with
Parent, the Guarantors) and Deutsche Bank Trust Company Americas, as trustee (the
Trustee), as supplemented by a supplemental indenture to be dated as of the Closing Date
relating to the 2016 Notes (the First Supplemental Indenture) and as supplemented by a
supplemental indenture to
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be dated as of the Closing Date relating to the 2020 Notes (the Second Supplemental
Indenture). The Base Indenture, as amended and supplemented by the First Supplemental
Indenture and the Second Supplemental Indenture, is referred to herein as the Indenture.
The Notes will be guaranteed (the Guarantees) on an unsecured senior basis by the
Guarantors. The Notes, as guaranteed by the Guarantors pursuant to the Guarantees, are referred to
as the Securities.
The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The
Depository Trust Company (the Depositary), pursuant to a Letter of Representations, to be
dated on or before the Closing Date (as defined in Section 2 below) (the DTC Agreement),
between the Company and the Depositary.
The Company and the Guarantors have prepared and filed with the Securities and Exchange
Commission (the Commission) an automatic shelf registration statement (as defined in
Rule 405 under the Securities Act of 1933, as amended (collectively, with the rules and regulations
promulgated thereunder, the Securities Act) on Form S-3 (File No. 333-170456), which
contains a base prospectus (the Base Prospectus), to be used in connection with the
public offering and sale of various equity and debt securities, including the Securities, under the
Securities Act, and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act. Such registration statement, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under the Securities Act, including any
required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B
under the Securities Act, is called the Registration Statement. The term
Prospectus shall mean the final prospectus supplement relating to the Securities,
together with the Base Prospectus, that is first filed pursuant to Rule 424(b) after the date and
time that this Agreement is executed (the Execution Time) by the parties hereto. The
term Preliminary Prospectus shall mean any preliminary prospectus supplement relating to
the Securities, together with the Base Prospectus, that is first filed with the Commission pursuant
to Rule 424(b). Any reference herein to the Registration Statement, the Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act prior to
5:45 p.m. Eastern Time on December 2, 2010 (the Initial Sale Time). All references in
this Agreement to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any
amendments or supplements to any of the foregoing, shall include any copy thereof filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval System
(EDGAR).
All references in this Agreement to financial statements and schedules and other information
which is contained, included or stated (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the Exchange Act), which is or is deemed to be incorporated by
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reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the
case may be, after the Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1. Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors, jointly and severally, hereby represent, warrant and covenant
to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the Closing Date
(in each case, a Representation Date), as follows:
(a) Compliance with Registration Requirements. Each of the Company, Parent and the Subsidiary
Guarantors meets the requirements for use of Form S-3 under the Securities Act. The Registration
Statement has become effective under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of Parent or
the Company, are contemplated or threatened by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition, the Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations
promulgated thereunder (collectively, the Trust Indenture Act).
At the respective times the Registration Statement and any post-effective amendments thereto
became effective and at each Representation Date, the Registration Statement and any post-effective
amendments thereto (i) complied and will comply in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and 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. At the date of the
Prospectus and at the Closing Date, neither the Prospectus nor any amendments or supplements
thereto included or will include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility on Form T-1 of the Trustee
under the Trust Indenture Act and (ii) statements in or omissions from the Registration Statement
or any post-effective amendment or the Prospectus or any amendments or supplements thereto made in
reliance upon and in conformity with information furnished to Parent or the Company in writing by
any of the Underwriters through the Representatives expressly for use therein, it being understood
and agreed that the only such information furnished by any Underwriter through the Representatives
consists of the information described as such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the
Commission, complied in all material respects with the Securities Act, and the Preliminary
Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering
of the Securities will, at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
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(b) Disclosure Package. The term Disclosure Package shall mean (i) the Preliminary
Prospectus dated December 2, 2010 and (ii) the issuer free writing prospectuses as defined in Rule
433 of the Securities Act (each, an Issuer Free Writing Prospectus), if any, identified
in Annex I hereto. As of the Initial Sale Time, the Disclosure Package did not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Disclosure Package
based upon and in conformity with information furnished to Parent or the Company in writing by any
Underwriter through the Representatives expressly for use therein, it being understood and agreed
that the only such information furnished by any Underwriter through the Representatives consists of
the information described as such in Section 8 hereof.
(c) Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Disclosure Package and the Prospectus (i) at the time
they were or hereafter are filed with the Commission, complied or will comply in all material
respects with the requirements of the Exchange Act and (ii) when read together with the other
information in the Disclosure Package, at the Initial Sale Time, and when read together with the
other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not
or will not include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(d) Parent is a Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or the Guarantors or any person acting on their behalf
(within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer
relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv)
as of the Execution Time, Parent was and is a well known seasoned issuer as defined in Rule 405
of the Securities Act. The Registration Statement is an automatic shelf registration statement,
as defined in Rule 405 of the Securities Act, that automatically became effective not more than
three years prior to the Execution Time; neither the Company nor any of the Guarantors has received
from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of
the automatic shelf registration statement form and the Company and the Guarantors have not
otherwise ceased to be eligible to use the automatic shelf registration form.
(e) Parent is not an Ineligible Issuer. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), Parent was not and is not an Ineligible Issuer (as defined in Rule 405 of the
Securities Act), without taking account of any determination by the Commission pursuant to Rule 405
of the Securities Act that it is not necessary that Parent be considered an Ineligible Issuer.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of the Securities
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under this Agreement or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, the Disclosure Package or the Prospectus. If at any time following
issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, the Disclosure Package or the Prospectus, the
Company and the Guarantors have promptly notified or will promptly notify the Representatives and
have promptly amended or supplemented or will promptly amend or supplement, at their own expense,
such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two
sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based
upon and in conformity with written information furnished to Parent or the Company by any
Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter through the Representatives
consists of the information described as such in Section 8 hereof.
(g) Distribution of Offering Material By the Company. The Company and the Guarantors have not
distributed and will not distribute, prior to the later of the Closing Date and the completion of
the Underwriters distribution of the Securities, any offering material in connection with the
offering and sale of the Securities other than the Preliminary Prospectus, the Prospectus and any
Issuer Free Writing Prospectus reviewed and consented to by the Representatives and included in
Annex I hereto or the Registration Statement.
(h) Authorization of Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and each of the Guarantors.
(i) Authorization of the Indenture. The Indenture has been duly qualified under the Trust
Indenture Act, has been duly authorized by the Company and each of the Guarantors and when duly
executed and delivered in accordance with its terms by each of the parties thereto will constitute
a valid and binding agreement of the Company and each of the Guarantors, enforceable against the
Company and each of the Guarantors in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by general equitable
principles and an implied covenant of good faith and fair dealing.
(j) Authorization of the Notes. The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been duly authorized for issuance and
sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws relating to or affecting the rights and remedies of creditors or by general
equitable principles and an implied covenant of good faith and fair dealing, and will be entitled
to the benefits of the Indenture.
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(k) Authorization of the Guarantees. The Guarantees have been duly authorized by each of the
Guarantors and, when the Notes have been duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein, the Guarantees will be valid and legally
binding obligation of each of the Guarantors, enforceable against each of the Guarantors in
accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable principles and an implied
covenant of good faith and fair dealing.
(l) Description of the Notes, the Guarantees and the Indenture. The Notes, the Guarantees and
the Indenture conform in all material respects to the descriptions thereof contained in the
Disclosure Package and the Prospectus.
(m) Accuracy of Statements in Prospectus. The statements in each of the Disclosure Package
and the Prospectus under the captions Description of Notes and Guarantees, Description of Debt
Securities and Guarantees and Material U.S. Federal Income Tax Considerations in each case
insofar as such statements constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present and summarize, in all material respects, the matters referred
to therein.
(n) No Material Adverse Change. Except as otherwise disclosed in the Disclosure Package and
the Prospectus, subsequent to the respective dates as of which information is given in the
Disclosure Package, (i) there has not been any material change in the capital stock or long-term
debt of the Company, Parent or any of Parents subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the business,
properties, management, financial position or results of operations of Parent and its subsidiaries
taken as a whole (a Material Adverse Change); (ii) none of the Company, Parent or any of
Parents subsidiaries has entered into any transaction or agreement that is material to Parent and
its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent,
that is material to Parent and its subsidiaries taken as a whole; and (iii) none of the Company,
Parent or any of Parents subsidiaries has sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor disturbance or dispute or any action, order or decree of any court or arbitrator or
governmental or regulatory authority that is material to Parent and its subsidiaries taken as a
whole.
(o) Independent Accountants. Ernst & Young LLP, who have expressed their opinion with respect
to Parents audited financial statements for the fiscal years ended December 31, 2009, 2008 and
2007 incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus, are independent public accountants with respect to Parent as required by the Securities
Act and the Exchange Act and are a registered public accounting firm with the Public Company
Accounting Oversight Board.
(p) Preparation of the Financial Statements. The financial statements together with the
related notes thereto incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus present fairly in all material respects the consolidated financial
position of Parent and its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. Such financial statements comply as to form
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with the applicable accounting requirements of the Securities Act and have been prepared in
conformity with generally accepted accounting principles as applied in the United States
(GAAP) applied on a consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. No other financial statements are required to be
included in the Registration Statement. The summary financial information included in the
Disclosure Package and the Prospectus present fairly in all material respects the information shown
therein and have been compiled on a basis consistent with that of the audited financial statements
included in the Registration Statement, the Disclosure Package and the Prospectus.
(q) Incorporation and Good Standing of the Company and its Subsidiaries. The Company, the
Guarantors and each of their respective subsidiaries have been duly incorporated and are validly
existing and in good standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except where the failure to be
so qualified or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial position or results of
operations of Parent and its subsidiaries taken as a whole or on the performance by the Company and
the Guarantors of their obligations under the Notes and the Guarantees (a Material Adverse
Effect). All of the issued and outstanding shares of capital stock or membership interests of
each subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and
are owned by Parent, directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim.
(r) Capitalization and Other Capital Stock Matters. The authorized, issued and outstanding
capital stock of Parent is as set forth in the Disclosure Package and the Prospectus under the
caption Capitalization (other than for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans and Parents stock repurchase program referred to in the
Disclosure Package and the Prospectus or upon exercise of outstanding options referred to in the
Disclosure Package and the Prospectus, as the case may be).
(s) No Violation or Default. None of the Company, Parent or any of Parents subsidiaries is
(i) in violation of its charter, by-laws or similar organizational documents; (ii) in default, and
no event has occurred that, with notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company,
Parent or any of Parents subsidiaries is a party or by which the Company, Parent or any of
Parents subsidiaries is bound or to which any of the property or assets of the Company, Parent or
any of Parents subsidiaries is subject; or (iii) in violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation
that would not, individually or in the aggregate, have a Material Adverse Effect.
(t) No Conflicts. The execution, delivery and performance by the Company and the Guarantors
of this Agreement and the Indenture, the issuance and sale of the Securities
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(including the Guarantees) and compliance by the Company and the Guarantors with the terms
thereof and the consummation of the transactions contemplated thereby will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company, Parent or any of Parents subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company,
Parent or any of Parents subsidiaries is a party or by which the Company, Parent or any of
Parents subsidiaries is bound or to which any of the property or assets of the Company, Parent or
any of Parents subsidiaries is subject, (ii) result in any violation of the provisions of the
charter, by-laws or similar organizational documents of the Company, Parent or any of Parents
subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority, except, in the case
of clause (i) above, for any such conflict, breach or violation that would not, individually or in
the aggregate, have a Material Adverse Effect.
(u) No Consents Required. No consent, approval, authorization, filing, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company and the Guarantors of this
Agreement, the issuance and sale of the Securities (including the Guarantees) and compliance by the
Company and the Guarantors with the terms thereof and the consummation of the transactions
contemplated by this Agreement, except for such consents, approvals, authorizations, filings,
orders and registrations or qualifications as may be required under applicable state securities
laws or the rules and regulations of the Financial Industry Regulatory Authority (FINRA)
or filings with the Commission that either have been or will be made on or prior to the Closing
Date pursuant to and in accordance with the Securities Act and Exchange Act.
(v) Legal Proceedings. Except as described in the Prospectus and the Disclosure Package,
there are no legal, governmental or regulatory investigations, actions, suits or proceedings
pending to which the Company, Parent or any of Parents subsidiaries is or may be a party or to
which any property of the Company, Parent or any of Parents subsidiaries is or may be the subject
that, individually or in the aggregate, is reasonably expected to have a Material Adverse Effect;
and to the best knowledge of the Company and the Guarantors, no such investigations, actions, suits
or proceedings are threatened or, to the best knowledge of the Company and the Guarantors,
contemplated by any governmental or regulatory authority or threatened by others.
(w) No Labor Disputes. No labor disturbance by or dispute with employees of the Company,
Parent or any of Parents subsidiaries exists or, to the best knowledge of the Company and the
Guarantors, is contemplated or threatened, that would have a Material Adverse Effect.
(x) Title to Intellectual Property. Except as would not, individually or in the aggregate,
have a Material Adverse Effect, the Company, Parent and Parents subsidiaries own or possess
adequate rights to use all material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their respective
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businesses as now operated by them; and neither the Company, Parent nor Parents subsidiaries
has received any notice of any claim of infringement of or conflict with any such rights of others
that if determined adversely to the Company, Parent or Parents subsidiaries, would individually or
in the aggregate have a Material Adverse Effect.
(y) Compliance With Environmental Laws. Except as described in the Prospectus and the
Disclosure Package, the Company, Parent and Parents subsidiaries (i) are in compliance with any
and all applicable federal, state, local and foreign laws, rules and regulations, decisions and
orders relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, Environmental Laws), (ii)
have received and are in compliance with all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses; and (iii) have not
received notice of any actual or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except
in any such case for any such failure to comply with, or failure to receive required permits,
licenses or approvals or liability, as would not, individually or in the aggregate, have a Material
Adverse Effect.
(z) Investment Company Act. Neither the Company nor any of the Guarantors is, and after
giving effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus and the Disclosure Package none of them will be, an
investment company or an entity controlled by an investment company within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, Investment Company Act).
(aa) No Price Stabilization or Manipulation. None of the Company, Parent or any of Parents
subsidiaries has not taken and will not take, directly or indirectly, any action designed to or
that would be reasonably expected to cause or result in stabilization or manipulation of the price
of any security of the Company or Parent to facilitate the sale or resale of the Securities.
(bb) Stock Options. With respect to the stock options (the Stock Options) granted
pursuant to the stock-based compensation plans of Parent and its subsidiaries (the Parent
Stock Plans), (i) each such grant was made in all material respects in accordance with the
terms of the Parent Stock Plans, the Exchange Act and all other applicable laws and regulatory
rules or requirements, including the rules of the New York Stock Exchange and any other exchange on
which Parent securities are traded, (ii) the per share exercise price of each Stock Option was
equal to the fair market value of a share of common stock on the applicable Grant Date and (iii)
each such grant was properly accounted for in accordance with GAAP in the financial statements
(including the related notes) of Parent and disclosed in Parents filings with the Commission in
accordance with the Exchange Act and all other applicable laws.
(cc) Sarbanes-Oxley Compliance. There is and has been no failure on the part of Parent or any
of Parents directors or officers, in their capacities as such, to comply in all material respects
with any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the Sarbanes-Oxley Act), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
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(dd) Internal Control over Financial Reporting. Parent maintains a system of internal control
over financial reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act)
designed by, or under the supervision of, Parents principal executive officer and principal
financial officer to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. Management of Parent most recently assessed the effectiveness of
Parents internal control over financial reporting as of December 31, 2009, using the criteria set
forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal
Control-Integrated Framework. Based upon that assessment, management of Parent believed that, as
of December 31, 2009, Parents internal control over financial reporting was effective based upon
those criteria. Management of Parent is not aware of any reason why Parents internal control over
financial reporting is not effective as of the date hereof, and management of Parent is not aware
as of the date hereof of any material weakness in its internal control over financial reporting.
(ee) Disclosure Controls and Procedures. Parent maintains disclosure controls and procedures
(as such term is defined in Rule 13a-15(e) under the Exchange Act) that have been designed to
ensure that material information relating to Parent and its consolidated subsidiaries is made known
to Parents principal executive officer and principal financial officer by others within those
entities. Management of Parent most recently performed an evaluation of the effectiveness of the
design and operation of Parents disclosure controls and procedures as of the end of the year ended
December 31, 2009. Based upon that evaluation, management of Parent concluded that Parents
disclosure controls and procedures were effective as of such date. Management of Parent is not
aware of any reason why Parents disclosure controls and procedures are not effective as of the
date hereof.
Any certificate signed by an officer of the Company, Parent or any subsidiary of Parent and
delivered to the Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company, Parent or any such subsidiary, as the case may be, to
each Underwriter as to the matters set forth therein.
Section 2. Purchase, Sale and Delivery of the Notes.
(a) The Notes. The Company agrees to issue and sell to the several Underwriters, severally
and not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to the
conditions herein set forth, the Underwriters agree, severally and not jointly, to purchase from
the Company (i) the aggregate principal amount of the 2016 Notes set forth opposite their
respective names on Schedule A at a purchase price of 99.217% of the principal amount of such
Notes, payable on the Closing Date and (ii) the aggregate principal amount of the 2020 Notes set
forth opposite their respective names on Schedule A at a purchase price of 98.873% of the principal
amount of such Notes, payable on the Closing Date.
(b) The Closing Date. Delivery of certificates for the Notes in global form to be purchased
by the Underwriters and payment therefor shall be made at the offices of Mayer Brown LLP, 1675
Broadway, New York, New York 10019 (or such other place as may be agreed to by the Company and the
Representatives) at 9:00 a.m., New York City time, on
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December 7, 2010, or such other time and date as the Underwriters and the Company shall
mutually agree (the time and date of such closing are called the Closing Date).
(c) Public Offering of the Notes. The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
(d) Payment for the Notes. Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
(e) It is understood that the Representatives have been authorized, for their own accounts and
for the accounts of the several Underwriters, to accept delivery of and receipt for, and make
payment of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
(f) Delivery of the Notes. The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters global certificates representing the
Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The certificates for the Notes
shall be in such denominations and registered in such names and denominations as the
Representatives shall have requested at least one full business day prior to the Closing Date and
shall be made available for inspection on the business day preceding the Closing Date at a location
in New York City, as the Representatives may designate. Time shall be of the essence, and delivery
at the time and place specified in this Agreement is a further condition to the obligations of the
Underwriters.
Section 3. Covenants of the Company and the Guarantors.
The Company and the Guarantors, jointly and severally, covenant and agree with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company and the
Guarantors, subject to Section 3(b), will comply with the requirements of Rule 430B of the
Securities Act, and will promptly notify the Representatives, and confirm the notice in writing, of
(i) the effectiveness during the Prospectus Delivery Period (as defined below) of any
post-effective amendment to the Registration Statement or the filing of any supplement or amendment
to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the
Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Preliminary
Prospectus or the Prospectus or, on or before the later of the Closing Date or such date as, in the
opinion of counsel for the Company, the Prospectus is no longer required by law to be delivered in
connection with sales of the Securities by an Underwriter or dealer, for additional information,
and (iv) the issuance by the Commission of any stop order suspending
11
the effectiveness of the Registration Statement or of any order preventing or suspending the
use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company and the Guarantors will promptly effect the
filings necessary pursuant to Rule 424 and will take such steps as they deem necessary to ascertain
promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing under Rule
424 was received for filing by the Commission and, in the event that it was not, they will promptly
file such document. The Company and the Guarantors will use their respective reasonable best
efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Securities by an Underwriter or dealer, including in circumstances where such requirement
may be satisfied pursuant to Rule 172 of the Securities Act (the Prospectus Delivery
Period), the Company and the Guarantors will give the Representatives notice of their
intention to file or prepare any amendment to the Registration Statement (including any filing
under Rule 462(b) of the Securities Act), or any amendment, supplement or revision to the
Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or
otherwise, will furnish the Representatives with copies of any such documents a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company and the Guarantors have furnished or
will deliver to the Representatives and counsel for the Underwriters, without charge, as the
Representatives may reasonably request, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the Underwriters. The Registration
Statement and each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company and the Guarantors will deliver to each
Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter may
reasonably request, and the Company and the Guarantors hereby consent to the use of such copies for
purposes permitted by the Securities Act. The Company and the Guarantors will furnish to each
Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the
Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and the
Prospectus and any amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
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(e) Continued Compliance with Securities Laws. The Company and the Guarantors will comply
with the Securities Act and the Exchange Act so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Registration Statement, the Disclosure
Package and the Prospectus. If at any time during the Prospectus Delivery Period, any event shall
occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company and the Guarantors, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading or to amend or supplement the Disclosure Package or the Prospectus in order
that the Disclosure Package or the Prospectus, as the case may be, will not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the Initial Sale Time or at the
time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in
the opinion of either such counsel, at any such time to amend the Registration Statement or amend
or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of
any law, the Company and the Guarantors will (1) notify the Representatives of any such event or
condition and (2) promptly prepare and file with the Commission, subject to Section 3(b) hereof,
such amendment or supplement as may be necessary to correct such statement or omission or to make
the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the
Company and the Guarantors will furnish to the Underwriters, without charge, such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Compliance. The Company and the Guarantors shall cooperate with the
Representatives and counsel for the Underwriters to qualify or register the Securities for sale
under (or obtain exemptions from the application of) the applicable state securities or blue sky
laws of those jurisdictions designated by the Representatives, shall comply with such laws and
shall continue such qualifications, registrations and exemptions in effect so long as required for
the distribution of the Securities. The Company and the Guarantors shall not be required to
qualify to transact business or to take any action that would subject it to general service of
process in any such jurisdiction where it is not presently qualified or where it would be subject
to taxation as a foreign business. The Company and the Guarantors will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Securities for offering, sale or trading in any jurisdiction or any initiation or threat of
any proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company and the Guarantors shall use their respective
reasonable best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption Use of Proceeds in the Disclosure Package and the
Prospectus.
(h) Depositary. The Company and the Guarantors will cooperate with the Underwriters and use
their respective commercially reasonable efforts to permit the Notes to be eligible for clearance
and settlement through the facilities of the Depositary.
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(i) Periodic Reporting Obligations. During the Prospectus Delivery Period, Parent shall file,
on a timely basis, with the Commission and the New York Stock Exchange all reports and documents
required to be filed under the Exchange Act.
(j) Agreement Not to Offer or Sell Additional Securities. During the period commencing on the
date hereof and ending on the Closing Date, the Company and the Guarantors will not, without the
prior written consent of the Representatives (which consent shall not be unreasonably withheld),
directly or indirectly, sell, offer, contract or grant any option to sell, pledge, transfer or
establish an open put equivalent position within the meaning of Rule 16a-1(h) under the Exchange
Act, or otherwise dispose of or transfer, or announce the offering of, or file any registration
statement under the Securities Act in respect of, any debt securities of the Company or the
Guarantors similar to the Notes or Guarantees or securities exchangeable for or convertible into
debt securities similar to the Notes or Guarantees (other than as contemplated by this Agreement
with respect to the Notes).
(k) Final Term Sheet. The Company and the Guarantors will prepare a final term sheet
containing only a description of the Securities, and will file such term sheet pursuant to Rule
433(d) under the Securities Act within the time required by such rule (such term sheet, the
Final Term Sheet). Any such Final Term Sheet is an Issuer Free Writing Prospectus for
purposes of this Agreement. A form of the Final Term Sheet for the Securities is attached hereto
as Exhibit B.
(l) Permitted Free Writing Prospectuses. The Company and the Guarantors represent that they
have not made, and agree that, unless they obtain the prior written consent of the Representatives,
they will not make, any offer relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a free writing prospectus (as defined in
Rule 405 of the Securities Act) required to be filed by the Company or the Guarantors with the
Commission or retained by the Company or the Guarantors under Rule 433 of the Securities Act;
provided that the prior written consent of the Representatives shall be deemed to have been given
in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement. Any such
free writing prospectus consented to or deemed to be consented to by the Representatives is
hereinafter referred to as a Permitted Free Writing Prospectus. The Company and the
Guarantors agree that (i) they have treated and will treat, as the case may be, each Permitted Free
Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) have complied and will comply, as
the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing with the Commission where
required, legending and record keeping. The Company and the Guarantors consent to the use by any
Underwriter of a free writing prospectus that (a) is not an issuer free writing prospectus as
defined in Rule 433, and (b) contains only (i) information describing the preliminary terms of the
Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act, (iii)
information that describes the final terms of the Notes or their offering and that is included in
the Final Term Sheet of the Company and the Guarantors contemplated in Section 3(k) or (iv)
comparable bond price information; provided, that such consent shall not permit any Underwriter to,
and any Underwriter shall obtain the express prior written consent of the Company to, take any
action that would result in a free writing prospectus being required to be filed with the
Commission under Rule 433 of the
14
Securities Act that otherwise would not be required to be filed by the Company or the
Guarantors thereunder, but for the action of the Underwriter.
(m) Registration Statement Renewal Deadline. If immediately prior to the third anniversary
(the Renewal Deadline) of the initial effective date of the Registration Statement, any
of the Securities remain unsold by the Underwriters, the Company and the Guarantors will prior to
the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic
shelf registration statement relating to the Securities, in a form reasonably satisfactory to the
Representatives. If the Company and the Guarantors are no longer eligible to file an automatic
shelf registration statement, the Company and the Guarantors will prior to the Renewal Deadline, if
they have not already done so, file a new shelf registration statement relating to the Securities,
in a form reasonably satisfactory to the Representatives, and will use their respective reasonable
best efforts to cause such registration statement to be declared effective within 60 days after the
Renewal Deadline. The Company and the Guarantors will take all other action reasonably necessary
or appropriate to permit the public offering and sale of the Securities to continue as contemplated
in the expired registration statement relating to the Securities. References herein to the
Registration Statement shall include such new automatic shelf registration statement or such new
shelf registration statement, as the case may be.
(n) Notice of Inability to Use Automatic Shelf Registration Statement Form. If at any time
during the Prospectus Delivery Period, the Company or any of the Guarantors receives from the
Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company and the Guarantors will (i) promptly
notify the Representatives, (ii) promptly file a new registration statement or post-effective
amendment on the proper form relating to the Securities, in a form reasonably satisfactory to the
Representatives, (iii) use their reasonable best efforts to cause such registration statement of
post-effective amendment to be declared effective and (iv) promptly notify the Representatives of
such effectiveness. The Company and the Guarantors will take all other action reasonably necessary
or appropriate to permit the public offering and sale of the Securities to continue as contemplated
in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the
Company or any of the Guarantors has otherwise become ineligible. References herein to the
Registration Statement shall include such new registration statement or post-effective amendment,
as the case may be.
(o) Filing Fees. The Company and the Guarantors agree to pay the required Commission filing
fees relating to the Securities within the time required by and in accordance with Rule 456(b)(1)
and 457(r) of the Securities Act.
(p) No Manipulation of Price. The Company and the Guarantors will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted or might reasonably
be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation
of the price of any securities of the Company or any of the Guarantors to facilitate the sale or
resale of the Securities.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company and the Guarantors of any one or more of the
foregoing covenants or extend the time for their performance.
15
Section 4. Payment of Expenses. The Company and the Guarantors agree to pay all
costs, fees and expenses incurred in connection with the performance of their obligations hereunder
and in connection with the transactions contemplated hereby, including without limitation (i) all
expenses incident to the issuance and delivery of the Securities (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Securities, (iii) all fees and expenses of the Companys and the
Guarantors counsel, independent public or certified public accountants and other advisors to the
Company and the Guarantors, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration Statement (including
financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free
Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and
supplements thereto, and this Agreement, the Indenture, the DTC Agreement and the Securities, (v)
all filing fees, reasonable attorneys fees and expenses incurred by the Company, the Guarantors or
the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Securities for offer and sale under the
state securities or blue sky laws, and, if requested by the Representatives, preparing a Blue Sky
Survey or memorandum, and any supplements thereto, advising the Underwriters of such
qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by
FINRA of the terms of the sale of the Securities, (vii) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, (viii) any fees payable in connection with the rating of the
Securities with the ratings agencies, (ix) all fees and expenses (including reasonable fees and
expenses of counsel) of the Company and the Guarantors in connection with approval of the
Securities by the Depositary for book-entry transfer, (x) all other fees, costs and expenses
referred to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and
expenses incurred in connection with the performance of its obligations hereunder for which
provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections
6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The obligations of the
several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date shall
be subject to the accuracy of the representations and warranties on the part of the Company and the
Guarantors set forth in Section 1 hereof as of the date hereof, as of the Initial Sale Time, and as
of the Closing Date as though then made and to the timely performance by the Company of its
covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Effectiveness of Registration Statement. The Registration Statement shall have become
effective under the Securities Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the Commission, any request on
the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters and the Company and the Guarantors shall not
have received from the Commission any notice pursuant to Rule 401(g)(2)
16
of the Securities Act objecting to use of the automatic shelf registration statement form.
The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in
accordance with Rule 424(b) (or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the requirements of Rule 430B).
(b) Accountants Comfort Letter. On the date hereof, the Representatives shall have received
from Ernst & Young LLP, independent public or certified public accountants for Parent, a letter
dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the
Representatives with respect to the audited and unaudited financial statements and certain
financial information contained in the Registration Statement and the Prospectus.
(c) Bring-down Comfort Letter. On the Closing Date, the Representatives shall have received
from Ernst & Young LLP, independent public or certified public accountants for Parent, a letter
dated such date, in form and substance satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to subsection (b) of this
Section 5, except that the specified date referred to therein for the carrying out of procedures
shall be no more than three business days prior to the Closing Date.
(d) No Objection. If the Registration Statement and/or the offering of the Securities has
been filed with FINRA for review, FINRA shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(e) No Material Adverse Change or Ratings Agency Change. For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change; and
(ii) 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
securities of the Company or any of the Guarantors by any nationally recognized statistical
rating organization as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(f) Opinion of Counsel for the Company. On the Closing Date, the Representatives shall have
received the opinion, dated as of the Closing Date of (i) King & Spalding LLP, U.S. counsel for the
Company, Cooper B-Line, Inc., Cooper Bussmann, LLC, Cooper Crouse-Hinds, LLC, Cooper Lighting, LLC,
Cooper Power Systems, LLC and Cooper Wiring Devices, Inc. (collectively, the U.S.
Guarantors), the form of which is attached as Exhibit A-1, (ii) Arthur Cox, Irish counsel for
Parent, the form of which is attached as Exhibit A-2, (iii) Appleby, Bermuda counsel for Cooper
Industries, Ltd. (the Bermuda Guarantor), the form of which is attached as Exhibit A-3
and (iv) Terrance V. Helz, Associate General Counsel of Parent, the form of which is attached as
Exhibit A-4.
(g) Opinion of Counsel for the Underwriters. On the Closing Date, the Representatives shall
have received the favorable opinion of Mayer Brown LLP, counsel for the
Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably
requested by the Representatives.
17
(h) Officers Certificate. On the Closing Date, the Representatives shall have received a
written certificate executed by an executive officer of the Company and of each of the Guarantors,
dated as of the Closing Date, to the effect that:
(i) the Company or such Guarantor, as the case may be, has not received any stop order
suspending the effectiveness of the Registration Statement, and no proceedings for such
purpose have been instituted or, to such officers knowledge, threatened by the Commission;
(ii) the Company or such Guarantor, as the case may be, has not received from the
Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of
the automatic shelf registration statement form;
(iii) the representations, warranties and covenants of the Company or such Guarantor,
as the case may be, set forth in Section 1 of this Agreement are true and correct with the
same force and effect as though expressly made on and as of the Closing Date; and
(iv) the Company or such Guarantor, as the case may be, has complied with all the
agreements hereunder and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date.
(i) Additional Documents. On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Securities as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or agreements, herein
contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company and the
Guarantors at any time on or prior to the Closing Date, which termination shall be without
liability on the part of any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall
at all times be effective and shall survive such termination.
Section 6. Reimbursement of Underwriters Expenses. If this Agreement is terminated by the
Representatives pursuant to Section 5 or 11, or if the sale to the Underwriters of the Securities
on the Closing Date is not consummated because of any refusal, inability or failure on the part of
the Company or any of the Guarantors to perform any agreement herein or to comply with any
provision hereof required to be performed or complied with by the Company or any Guarantor, the
Company and the Guarantors agree, jointly and severally, to reimburse the Representatives and the
other Underwriters (or such Underwriters as have terminated this Agreement with respect to
themselves), severally, upon demand for all out-of-pocket expenses that shall have been reasonably
incurred by the Representatives and the Underwriters in connection with the proposed purchase and
the offering and sale of the Securities, including but
18
not limited to reasonable fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall not become effective
until the execution of this Agreement by the parties hereto.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. The Company and the Guarantors agree, jointly and
severally, to indemnify and hold harmless each Underwriter, its directors, officers and employees,
and each person, if any, who controls any Underwriter within the meaning of the Securities Act and
the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such
Underwriter or such director, officer, employee, or controlling person may become subject, under
the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such settlement is effected
with the written consent of the Company and the Guarantors), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below) arises out of or is
based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the statements therein not
misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact
contained in any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and to reimburse each Underwriter and each such director,
officer, employee and controlling person for any and all expenses (including the reasonable fees
and disbursements of counsel chosen by the indemnified party) as such expenses are reasonably
incurred by such Underwriter or such director, officer, employee or controlling person in
connection with investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the foregoing indemnity agreement
shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the
extent, arising out of or based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with written information furnished to
the Company or any Guarantor by any Underwriter through the Representatives expressly for use in
the Registration Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this
Section 8(a) shall be in addition to any liabilities that the Company and the Guarantors may
otherwise have.
(b) Indemnification of the Company, the Guarantors and their Respective Directors and
Officers. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, each Guarantor, each of their respective directors, each of their respective officers and
each person, if any, who controls the Company or any of the Guarantors within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, such Guarantor or any such director, officer or controlling person
may become subject, under the Securities Act, the Exchange Act, or
19
other federal or state statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, or any amendment
thereto, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading; or (ii) upon any untrue
statement or alleged untrue statement of a material fact contained in any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission or alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
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 the Registration Statement, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto), in reliance upon and in conformity with written information furnished to the Company or
any Guarantor by any Underwriter through the Representatives expressly for use therein; and to
reimburse the Company, any such Guarantor, or any such director, officer or controlling person for
any legal and other expense reasonably incurred by the Company, such Guarantor or any such
director, officer or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action. The Company and
the Guarantors hereby acknowledge that the only information furnished to the Company and the
Guarantors by any Underwriter through the Representatives expressly for use in the Registration
Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) are the statements set forth in the third paragraph, the second
sentence of the seventh paragraph, the eighth, ninth and tenth paragraphs, the first sentence of
the eleventh paragraph and the twelfth paragraph under the caption Underwriting in the
Preliminary Prospectus and the Prospectus. The indemnity agreement set forth in this Section 8(b)
shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not materially prejudiced as a proximate result
of such failure. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to the indemnified
party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified
party; provided, however, such indemnified party shall have the right to employ its own counsel in
any such action and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party, unless: (i) the employment of such
counsel has been specifically authorized in writing by the indemnifying party; (ii) the
indemnifying party has failed promptly after receiving the aforesaid notice from
20
such indemnified party to assume the defense and employ counsel reasonably satisfactory to the
indemnified party; or (iii) the named parties to any such action (including any impleaded parties)
include both such indemnified party and the indemnifying party or any affiliate of the indemnifying
party, and such indemnified party shall have reasonably concluded that either (x) there may be one
or more legal defenses available to it which are different from or additional to those available to
the indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist
between such indemnified party and the indemnifying party or such affiliate of the indemnifying
party (it being understood, however, that the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all
such indemnified parties, which firm shall be designated in writing by the indemnified party and
that all such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt
of notice from the indemnifying party to such indemnified party of such indemnifying partys
election so to assume the defense of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless the indemnified party shall have employed separate counsel in accordance
with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of
counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 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 against any loss, claim, damage, liability or expense to the extent the
indemnified party is entitled to the benefits of indemnification pursuant to Section 8(a) or (b)
hereof, as applicable, by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated by Section 8(c)
hereof, the indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior to the date of such
settlement , unless the indemnifying party is, in good faith, contesting the amount of such
reimbursement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party is or could have
been a party and indemnity was or could have been sought hereunder by such indemnified party,
unless such settlement, compromise or consent (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of any indemnified party.
Section 9. Contribution. If the indemnification provided for in Section 8 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified
21
party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other
hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from
the offering of the Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Guarantors, and the total underwriting discount received by the Underwriters,
in each case as set forth on the front cover page of the Prospectus bear to the aggregate initial
public offering price of the Securities as set forth on such cover. The relative fault of the
Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors, on the one hand, or the Underwriters, on the other
hand, and the parties relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Guarantors and the Underwriters agree that it would not be just and 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
which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Securities underwritten by it and distributed to the public. 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 Underwriters obligations to contribute pursuant to this Section 9 are
several, and not joint, in proportion to their respective underwriting commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each director, officer or
employee of an Underwriter and each person, if any, who controls an Underwriter within the meaning
of the Securities Act and the Exchange Act shall have the same rights to contribution as such
Underwriter, and each director of the Company or a Guarantor, each officer of the Company or a
Guarantor, and each person, if any, who controls the Company or a Guarantor
22
with the meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company or such Guarantor.
Section 10. Default of One or More of the Several Underwriters. If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Securities that
it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of
Securities, which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase does not exceed 10% of the aggregate principal amount of the Securities to be purchased on
such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate
principal amounts of such Securities set forth opposite their respective names on Schedule A bears
to the aggregate principal amount of such Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase such Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such
date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase
such Securities and the aggregate principal amount of such Securities with respect to which such
default occurs exceeds 10% of the aggregate principal amount of Securities to be purchased on such
date, and arrangements satisfactory to the Representatives and the Company for the purchase of such
Securities are not made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of Sections 4, 6, 8, 9 and 17
shall at all times be effective and shall survive such termination. In any such case, either the
Representatives or the Company 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, to the Registration
Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any
other documents or arrangements may be effected.
As used in this Agreement, the term Underwriter shall be deemed to include any
person substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11. Termination of this Agreement. Prior to the Closing Date, this Agreement
may be terminated by the Representatives by notice given to the Company and the Guarantors if at
any time after the Execution Time (i) trading or quotation in any of the Companys or any
Guarantors securities shall have been suspended or limited by the Commission or the New York Stock
Exchange, or trading in securities generally on either the Nasdaq Stock Market or the New York
Stock Exchange shall have been suspended or materially limited, or minimum or maximum prices shall
have been generally established on any of such stock exchanges by the Commission or the NASD Stock
Market Inc.; (ii) a general banking moratorium shall have been declared by any of federal or New
York authorities; (iii) there shall have occurred any outbreak or escalation of national or
international hostilities or any crisis or calamity involving the United States, or any change in
the United States or international financial markets, as in the judgment of the Representatives is
material and adverse and makes it impracticable or inadvisable to market the Securities in the
manner and on the terms described in the Disclosure Package or the Prospectus or to enforce
contracts for the sale of securities; or (iv) there shall have occurred a material disruption in
commercial banking or securities settlement or clearance services. Any termination
23
pursuant to this Section 11 shall be without liability of any party to any other party except
as provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall
survive such termination and remain in full force and effect.
Section 12. No Fiduciary Duty. The Company and the Guarantors acknowledge and agree
that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arms-length commercial transaction between the Company and the Guarantors, on
the one hand, and the several Underwriters, on the other hand, and the Company and the Guarantors
are capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction each Underwriter is and
has been acting solely as a principal and is not the financial advisor, agent or fiduciary of the
Company, the Guarantors or their respective affiliates, stockholders, creditors or employees or any
other affiliated party of the Company or the Guarantors; (iii) no Underwriter has assumed or will
assume an advisory, agency or fiduciary responsibility in favor of the Company or any of the
Guarantors with respect to any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
or any of the Guarantors on other matters) and no Underwriter has any obligation to the Company or
any of the Guarantors with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement; (iv) the several Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company and the Guarantors and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company and the Guarantors have consulted their own legal,
accounting, regulatory and tax advisors to the extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Guarantors and the several Underwriters with respect to the subject
matter hereof. The Company and the Guarantors hereby waive and release, to the fullest extent
permitted by law, any claims that the Company or any of the Guarantors may have against the several
Underwriters with respect to any breach or alleged breach of agency or fiduciary duty with respect
to the offering contemplated hereby.
Section 13. Representations and Indemnities to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the Company, the
Guarantors, their respective officers and of the several Underwriters set forth in or made pursuant
to this Agreement (i) will remain operative and in full force and effect, regardless of any (A)
investigation made by or on behalf of any Underwriter, the officers or employees of any
Underwriter, or any person controlling the Underwriter, the Company, any Guarantor, the officers or
employees of the Company or any of the Guarantors, or any person controlling the Company or any of
the Guarantors, as the case may be or (B) acceptance of the Securities and payment for them
hereunder and (ii) will survive delivery of and payment for the Securities sold
hereunder. In addition, the provisions of Sections 4, 6, 8, 9 and 17 shall survive
termination of this Agreement and remain in full force and effect.
24
Section 14. Notices. All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Facsimile: (212) 816-7912
Attention: General Counsel
388 Greenwich Street
New York, New York 10013
Facsimile: (212) 816-7912
Attention: General Counsel
and
Goldman, Sachs & Co.
200 West Street
New York, New York 10282
Telephone: (866) 471-2526
Attention: Registration Department
200 West Street
New York, New York 10282
Telephone: (866) 471-2526
Attention: Registration Department
and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Facsimile: (704) 264-2522
Attention: High Grade DCM Transaction Management/Legal
Incorporated
One Bryant Park
New York, New York 10036
Facsimile: (704) 264-2522
Attention: High Grade DCM Transaction Management/Legal
with a copy to:
Mayer Brown LLP
71 South Wacker Drive
Chicago, Illinois 60606
Facsimile: (312) 706-8106
Attention: Edward S. Best
71 South Wacker Drive
Chicago, Illinois 60606
Facsimile: (312) 706-8106
Attention: Edward S. Best
If to the Company or any of the Guarantors:
Cooper Industries plc
600 Travis
Houston, Texas 77002
Facsimile: (713) 209-8983
Attention: Treasurer
600 Travis
Houston, Texas 77002
Facsimile: (713) 209-8983
Attention: Treasurer
25
with a copy to:
King & Spalding LLP
1180 Peachtree Street
Atlanta, Georgia 30309
Facsimile: (404) 572-5100
Attention: John J. Kelley III, Esq.
1180 Peachtree Street
Atlanta, Georgia 30309
Facsimile: (404) 572-5100
Attention: John J. Kelley III, Esq.
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees and controlling persons referred to in
Sections 8 and 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term successors shall not include any purchaser of the
Securities as such from any of the Underwriters merely by reason of such purchase.
Section 16. Partial Unenforceability. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE.
(a) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby (Related Proceedings) may be
instituted in the federal courts of the United States of America located in the City and County of
New York, Borough of Manhattan, or the courts of the State of New York in each case located in the
City and County of New York, Borough of Manhattan (collectively, the Specified Courts),
and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted
in regard to the enforcement of a judgment of any such court (a Related Judgment), as to
which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding.
Service of any process, summons, notice or document by mail to such partys address set forth above
shall be effective service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum. Each of Parent and
the Bermuda Guarantor irrevocably appoints the Company (or such successor entity) as its agent to
receive service of process or other legal
26
summons for purposes of any suit, action or proceeding based upon this Agreement that may be
instituted in any state or federal court in the City and County of New York.
(b) Waiver of Immunity. With respect to any Related Proceeding, each party irrevocably
waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of
sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after
judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with
respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any
other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such
immunity at or in respect of any such Related Proceeding or Related Judgment, including, without
limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as
amended.
Section 18. General Provisions. This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party (which, for purposes of this Section 18, may be the
Representatives on behalf of the Underwriters) whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company and the Guarantors, their affairs and their
business in order to assure that adequate disclosure has been made in the Registration Statement,
the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required
by the Securities Act and the Exchange Act.
[Signature Pages Follow]
27
If the foregoing is in accordance with your understanding of our agreement, kindly sign
and return to the Company and the Guarantors the enclosed copies hereof, whereupon this instrument,
along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
Very truly yours, COOPER US, INC. |
||||
By | /s/ Tyler W. Johnson | |||
Title: Vice President and Treasurer | ||||
COOPER INDUSTRIES plc |
||||
By | /s/ Tyler W. Johnson | |||
Title: Vice President and Treasurer | ||||
COOPER INDUSTRIES, LTD. |
||||
By | /s/ Tyler W. Johnson | |||
Title: Vice President and Treasurer | ||||
COOPER B-LINE, INC. |
||||
By | /s/ Tyler W. Johnson | |||
Title: Treasurer | ||||
COOPER BUSSMANN, LLC |
||||
By | /s/ Tyler W. Johnson | |||
Title: Treasurer | ||||
COOPER CROUSE-HINDS, LLC |
||||
By | /s/ Tyler W. Johnson | |||
Title: Treasurer | ||||
28
COOPER LIGHTING, LLC |
||||
By | /s/ Tyler W. Johnson | |||
Title: Treasurer | ||||
COOPER POWER SYSTEMS, LLC |
||||
By | /s/ Tyler W. Johnson | |||
Title: Treasurer | ||||
COOPER WIRING DEVICES, INC. |
||||
By | /s/ Tyler W. Johnson | |||
Title: Treasurer | ||||
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
CITIGROUP GLOBAL MARKETS INC. GOLDMAN, SACHS & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED Acting as Representatives of the several Underwriters named in the attached Schedule A. Citigroup Global Markets Inc. |
||||
By: | /s/ Brian D. Bednarski | |||
Name: | Brian D. Bednarski | |||
Title: | Managing Director | |||
Goldman, Sachs & Co. |
||||
By: | /s/ Goldman, Sachs & Co. | |||
Goldman, Sachs & Co. | ||||
29
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
||||
By: | /s/ Laurie Campbell | |||
Name: | Laurie Campbell | |||
Title: | Managing Director | |||
30
SCHEDULE A
Aggregate | Aggregate | |||||||
Principal | Principal | |||||||
Amount of | Amount of | |||||||
2016 Notes to | 2020 Notes to | |||||||
Underwriters | be Purchased | be Purchased | ||||||
Citigroup Global Markets Inc. |
$ | 58,334,000 | $ | 58,334,000 | ||||
Goldman, Sachs & Co. |
$ | 58,333,000 | $ | 58,333,000 | ||||
Merrill Lynch, Pierce, Fenner & Smith Incorporated |
$ | 58,333,000 | $ | 58,333,000 | ||||
Barclays Capital Inc. |
$ | 18,750,000 | $ | 18,750,000 | ||||
Deutsche Bank Securities Inc. |
$ | 18,750,000 | $ | 18,750,000 | ||||
ANZ Securities, Inc. |
$ | 4,688,000 | $ | 4,688,000 | ||||
BNY Mellon Capital Markets, LLC |
$ | 4,688,000 | $ | 4,688,000 | ||||
HSBC Securities (USA) Inc. |
$ | 4,688,000 | $ | 4,688,000 | ||||
PNC Capital Markets LLC |
$ | 4,688,000 | $ | 4,688,000 | ||||
RBS Securities Inc. |
$ | 4,687,000 | $ | 4,687,000 | ||||
The Williams Capital Group, L.P. |
$ | 4,687,000 | $ | 4,687,000 | ||||
UBS Securities LLC |
$ | 4,687,000 | $ | 4,687,000 | ||||
Wells Fargo Securities, LLC |
$ | 4,687,000 | $ | 4,687,000 | ||||
Total |
$ | 250,000,000 | $ | 250,000,000 | ||||
Schedule A-1
ANNEX I
Issuer Free Writing Prospectuses
Final Term Sheet, dated December 2, 2010 in the form set forth in Exhibit B
Annex I-1
EXHIBIT A-1
Form of Opinion of King & Spalding LLP
Exhibit A-1-1
EXHIBIT A-2
Form of Opinion of Arthur Cox
Exhibit A-2-1
EXHIBIT A-3
Form of Opinion of Appleby
Exhibit A-3-1
EXHIBIT A-4
Form of Opinion of Company Associate General Counsel
Exhibit A-4-1
EXHIBIT B
COOPER US, INC.
[]% Senior Notes due 2016
[]% Senior Notes due 2020
[]% Senior Notes due 2016
[]% Senior Notes due 2020
guaranteed by
COOPER INDUSTRIES plc
(and specified subsidiaries)
COOPER INDUSTRIES plc
(and specified subsidiaries)
Final Term Sheet
December 2, 2010
Issuer:
|
Cooper US, Inc. | |
Guarantors:
|
Cooper Industries plc, Cooper Industries, Ltd., Cooper B-Line, Inc., Cooper Bussmann, LLC, Cooper Crouse-Hinds, LLC, Cooper Lighting, LLC, Cooper Power Systems, LLC. and Cooper Wiring Devices, Inc. | |
Settlement Date:
|
[] | |
Anticipated Ratings:
|
Moodys: [] / S&P: [] / Fitch: [] | |
Format:
|
SEC Registered | |
Joint Book-Running Managers:
|
Citigroup Global Markets Inc. Goldman, Sachs & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated |
|
Co-Managers:
|
[] |
2016 Notes | 2020 Notes | |||
Size:
|
$[] | $[] | ||
Maturity:
|
[] | [] |
Exhibit B-1
Coupon (Interest Rate):
|
[]% | []% | ||
Price to Public:
|
[]% | []% | ||
Yield to Maturity:
|
[]% | []% | ||
Spread to Benchmark Treasury:
|
+[] basis points | +[] basis points | ||
Benchmark Treasury:
|
UST []% due [] | UST []% due [] | ||
Benchmark Treasury Price and
Yield:
|
[]; []% | []; []% | ||
Proceeds, before expenses,
to Cooper from the offering
of the notes contemplated by
this final term sheet:
|
$[] | $[] | ||
Redemption Provisions:
|
Make Whole Call - UST +[] | Make Whole Call - UST | ||
basis points | +[] basis points | |||
Redemption for Changes in | Par Call At any time on or | |||
Withholding Taxes - Par | after [] Redemption for Changes in Withholding Taxes - Par |
|||
Interest Payment Dates:
|
[] and [], commencing [] | [] and [], commencing [] | ||
CUSIP/ISIN:
|
[]/[] | []/[] |
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer and the guarantors have filed a registration statement (including a prospectus) with the
SEC for the offering to which this communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the issuer has filed with the SEC for
more complete information about the issuer and this offering. You may get these documents for free
by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter
or any dealer participating in the offering will arrange to send you the prospectus if you request
it by calling Citigroup Global Markets Inc. at (877) 858-5407, Goldman, Sachs & Co. at (866)
471-2526 or Merrill Lynch, Pierce, Fenner & Smith Incorporated at (800) 294-1322.
Exhibit B-2