New York, New York
May 8, 2009
Banc of America
Securities LLC
RBS Securities Inc.
As representatives
of the several
underwriters named in Schedule I
hereto
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c/o
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Banc of America Securities LLC
Bank of America Tower
One Bryant Park
New York, New York 10036
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Hasbro, Inc., a
corporation organized under the laws of the State of Rhode Island
(the “Company”), proposes to sell to the several
underwriters named in Schedule I hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives,
$425,000,000 aggregate principal amount of its 6.125% Notes due
2014 (the “Securities”), to be issued under an
indenture, dated as of March 15, 2000 (the “Base
Indenture”), between the Company and The Bank of Nova Scotia
Trust Company of New York, as trustee (the “Trustee”),
as supplemented by the second supplemental indenture, to be dated
the Closing Date (as defined below) (the “Supplemental
Indenture,” and, together with the Base Indenture, the
“Indenture”).
Any reference
herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3, which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms “amend,”
“amendment” or “supplement” with respect to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 20 hereof.
1.
Representations and Warranties . The Company represents and
warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) The Company
meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf
registration
statement, as
defined in Rule 405, on Form S-3 (File No. 333-145947),
including a related Base Prospectus, for registration under the Act
of the offering and sale of the Securities. Such Registration
Statement, including any amendments thereto filed prior to the
Execution Time, became effective upon filing and no notice of
objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act has been received by the Company.
No order suspending the effectiveness of the Registration Statement
has been issued by the Commission and no proceeding for that
purpose or pursuant to Section 8A of the Act against the
Company or related to the offering has been initiated or, to the
Company’s knowledge, threatened by the Commission. The
Company may have filed with the Commission, as part of an amendment
to the Registration Statement or pursuant to Rule 424(b), one
or more preliminary prospectus supplements relating to the
Securities, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement
relating to the Securities in accordance with Rule 424(b). As
filed, such final prospectus supplement shall contain all
information required by the Act and the rules thereunder, and shall
be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base
Prospectus and any Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On each
Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the
Closing Date (as defined herein), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each
Effective Date and at the Execution Time, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on the Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it
being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
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(c) (i) The
Disclosure Package and (ii) each electronic road show, when
taken together as a whole with the Disclosure Package, did not, as
of the Execution Time 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 written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in
Section 8 hereof.
(d) (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 Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Sections 13 or 15(d) of the Exchange Act or
form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the
Securities in reliance on the exemption in Rule 163, and
(iv) at the Execution Time (with such date being used as the
determination date for purposes of this clause (iv)), the Company
was or is (as the case may be) a “well-known seasoned
issuer” as defined in Rule 405. The Company agrees to
pay the fees required by the Commission relating to the Securities
within the time required by Rule 456(b)(1) without regard to
the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
(e) (i) At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the
Securities and (ii) as of the Execution Time (with such date
being used as the determination date for purposes of this clause
(ii)), the Company was not and is not an Ineligible Issuer (as
defined in Rule 405), without taking account of any
determination by the Commission pursuant to Rule 405 that it
is not necessary that the Company be considered an Ineligible
Issuer.
(f) Each Issuer
Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto does not include any information
that conflicts with the information contained in the Registration
Statement, including any document incorporated therein by reference
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
Section 8 hereof.
(g) The documents
incorporated by reference in the Disclosure Package and the Final
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act and the rules
and regulations of the Commission thereunder, and none
of
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such documents
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the
Registration Statement and the Final Prospectus, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder then in effect
and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(h) The statements
in the Preliminary Prospectus and the Final Prospectus under the
heading “Material United States Federal Income Tax
Consequences” insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(i) Since the date
as of which information is given in the Disclosure Package and the
Final Prospectus, there has not been (i) any material change
in the capital stock (other than changes pursuant to open market or
repurchase plans or employee benefit plans or changes resulting
from the conversion or redemption of outstanding shares of
preferred stock or convertible debt) or long-term debt of the
Company and its subsidiaries considered as a whole, or
(ii) any material adverse change, or any development known to
the Company that is reasonably likely to result in a material
adverse change, in or affecting the business, financial condition
or results of operations of the Company and its subsidiaries
considered as a whole, otherwise than as set forth or contemplated
in the Disclosure Package and the Final Prospectus.
(j) The Company
has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Rhode Island, with
power and authority to own, lease and operate its properties and
conduct its business as described in the Disclosure Package and the
Final Prospectus; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not have a material adverse effect on the business,
financial condition or results of operations of the Company and its
subsidiaries considered as a whole (a “Material Adverse
Effect”); each of the Company’s subsidiaries that
qualifies as a “significant subsidiary” under
Section 1-02(w) of Regulation S-X (each a
“Significant Subsidiary” and, collectively, the
“Significant Subsidiaries”) has been duly organized and
is validly existing as a corporation or other entity (as
applicable) in good standing under the laws of the jurisdiction of
its incorporation or organization (as applicable), with power and
authority to own, lease and operate its properties and conduct its
business as described in the Disclosure Package and the Final
Prospectus; each Significant Subsidiary is duly qualified as a
foreign corporation or other entity (as applicable) to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of
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business,
except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Disclosure Package and the Final Prospectus, all
of the issued and outstanding capital stock or other equity
interests (as applicable) of each Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable and (except for shares or other equity interests (as
applicable) necessary to qualify directors or to maintain any
minimum number of shareholders required by law) is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(k) The Company
has outstanding capital stock as set forth in the Disclosure
Package and the Final Prospectus (except for subsequent issuances
pursuant to employee benefit plans or pursuant to the exercise of
convertible securities or options and except for repurchases in
connection with open market or repurchase plans or redemptions of
shares of preferred stock), and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable.
(l) This Agreement
has been duly authorized, executed and delivered by the
Company.
(m) The Securities
have been duly authorized, and, when issued and delivered pursuant
to this Agreement, the Securities will have been duly executed,
issued and delivered and (assuming the due authentication thereof
by the Trustee) will constitute valid and legally binding
obligations of the Company, will be entitled to the benefits
provided by the Indenture and will be enforceable in accordance
with their terms except as the same may be limited by bankruptcy,
insolvency, reorganization or other laws of general applicability
relating to or affecting the enforcement of creditors’ rights
and to general equity principles.
(n) The Base
Indenture has been duly authorized, executed and delivered by the
Company and (assuming due authorization, execution and delivery by
the Trustee) constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency, reorganization or
other laws of general applicability relating to or affecting the
enforcement of creditors’ rights and to general equity
principles; the Base Indenture has been duly qualified under the
Trust Indenture Act.
(o) The
Supplemental Indenture has been duly authorized by the Company and
(assuming due authorization, execution and delivery by the Trustee)
at the Closing Date, will have been duly executed and delivered by
the Company and will constitute a valid and legally binding
agreement of the Company, enforceable in accordance with its terms
except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to
or affecting the enforcement of creditors’ rights and to
general equity principles;
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(p) The Indenture
conforms, and the Securities will conform, in all material respects
to the descriptions thereof contained in the Disclosure Package and
the Final Prospectus.
(q) The issuance
and sale of the Securities and the compliance by the Company with
all of the provisions of the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and
therein contemplated, will not 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 of the property or assets of the Company or
any of its Significant Subsidiaries pursuant to the terms of, any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any
of its Significant Subsidiaries is bound or to which any material
property or assets of the Company or any of its Significant
Subsidiaries is subject; nor will such action result in any
violation of the provisions of the Articles of Incorporation, as
amended, or the By-Laws of the Company; nor will such action result
in a violation of any statute or any order, rule or regulation of
any court or governmental agency or body in the United States
having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties.
(r) No consent,
approval, authorization, order, registration or qualification of or
with any court or any such regulatory authority or other
governmental body in the United States having jurisdiction over the
Company is required for the issuance and sale of the Securities or
the consummation by the Company of the other transactions
contemplated by this Agreement or the Indenture, except such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required by the securities or Blue Sky
laws of the various states, the Act, the Trust Indenture Act and
the securities laws of any jurisdiction outside the United States
in which the Securities are offered.
(s) No action,
suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of
its subsidiaries or its or their property is pending or, to the
best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to
have a Material Adverse Effect.
(t) Neither the
Company nor any subsidiary is in violation or default of
(i) any provision of its organizational documents,
(ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject, except for such
violations or defaults as would not, singly or in the aggregate,
have a Material Adverse Effect on the Company; or (iii) any
statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or any of its subsidiaries or any of
6
their
respective properties, as applicable, except for such violations as
would not, singly or in the aggregate, have a Material Adverse
Effect on the Company.
(u) The
accountants who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial
statements and schedules included in the Disclosure Package and the
Final Prospectus, are independent registered public accountants
with respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder.
(v) The
consolidated historical financial statements and schedules of the
Company and its consolidated subsidiaries included in the
Preliminary Prospectus, the Final Prospectus and the Registration
Statement present fairly in all material respects the financial
condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form in
all material respects with the applicable accounting requirements
of the Act and have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis throughout the periods involved (except as
otherwise noted therein). The summary financial data set forth
under the caption “Summary Financial Information” in
the Preliminary Prospectus and the Final Prospectus fairly present,
on the basis stated in the Preliminary Prospectus and the Final
Prospectus, the information included therein.
(w) The Company is
not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described
in the Disclosure Package and the Final Prospectus, will not be an
“investment company” as defined in the Investment
Company Act of 1940, as amended.
(x) No labor
problem or dispute with the employees of the Company or any of its
subsidiaries exists or is threatened or imminent, and the Company
is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries’ principal
suppliers, contractors or customers, that could have a Material
Adverse Effect.
(y) The Company
maintains a system of internal accounting control over financial
reporting with respect to itself and its consolidated subsidiaries
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles in the United States and to maintain
asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company’s internal control over financial reporting was
effective as of December 28, 2008 and the Company is not aware
of any material weakness in its internal control over financial
reporting.
(z) The Company
maintains “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) under the Exchange Act);
based on the evaluation of
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these
disclosure controls and procedures, the Company’s Chief
Executive Officer and Chief Financial Officer concluded that the
Company’s disclosure controls and procedures were effective
as of December 28, 2008.
(aa) The Company
has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(bb) Except as
would not otherwise reasonably be expected to have a Material
Adverse Effect and except as otherwise set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto), the Company and its
subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses, (iii) are in compliance with all terms and conditions
of any such permit, license or approval, and (iv) are not
subject to any claims or liabilities arising out of the release of
or exposure to wastes, pollutants or contaminants and are not aware
of any facts or circumstances which would form a reasonable basis
for any such claim.
(cc) In the
ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). To the Company’s
knowledge, no such associated costs and liabilities would, singly
or in the aggregate, have a Material Adverse Effect, except as set
forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement
thereto).
(dd) Except as set
forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto), to
the Company’s knowledge, the Company or its subsidiaries own
or possess the right to use all patents, trademarks, service marks,
trade names, copyrights, patentable inventions, trade secrets and
know-how used by the Company or its subsidiaries in, and material
to, the conduct of the Company’s and its subsidiaries’
business taken as a whole as now conducted or as proposed in the
Disclosure Package and the Final Prospectus to be conducted
(collectively, the “Intellectual Property”). Except as
would not otherwise reasonably be expected to have a Material
Adverse Effect and except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto), there are no legal or
governmental actions, suits, proceedings or claims pending or, to
the Company’s knowledge, threatened, against the Company
(i) challenging the Company’s rights in or to any
Intellectual Property, (ii) challenging the validity or scope
of any Intellectual Property owned by the Company, or
(iii) alleging
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that the
operation of the Company’s business as now conducted
infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary rights of a third
party.
(ee) There is and
has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such,
to comply 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
relating to loans and Sections 302 and 906 relating to
certifications.
(ff) Neither the
Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the
Company or any of its subsidiaries is aware of or has taken any
action, directly or indirectly, that would reasonably be expected
to result in a material violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any
money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for
foreign political office, in contravention of the FCPA; and the
Company, its subsidiaries and to the knowledge of the Company, its
affiliates conduct their businesses in compliance in all material
respects with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
(gg) Except as
disclosed in the Registration Statement, the Disclosure Package and
the Final Prospectus, the Company (i) does not have any
material lending or other relationship with any bank or lending
affiliate of any of the Underwriters and (ii) does not intend
to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of
any of the Underwriters.
Any
certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to each Underwriter.
2.
Purchase and Sale . Subject to the terms and conditions and
in reliance upon the representations and warrantie
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