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EXHIBIT 1
ILLINOIS TOOL WORKS INC.
UNDERWRITING AGREEMENT
$500,000,000
5 3/4% Notes due 2009
February 19, 1999
To the Representatives named in the attached Schedule I
of the Underwriters named in the attached Schedule II
Ladies and Gentlemen:
1. INTRODUCTORY. Illinois Tool Works Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule II
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives", which term may refer to a single Representative if so
indicated on Schedule I), the principal amount of its debt securities identified
in Schedule I (the "Securities"), to be issued under an Indenture dated as of
November 1, 1986, as supplemented by a First Supplemental Indenture dated as of
May 1, 1990 (the "Indenture") between the Company and ▇▇▇▇▇▇ Trust and Savings
Bank, as successor trustee (the "Trustee"). (If the firms listed in Schedule II
include only the firms listed in Schedule I, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firms.)
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act") (File No.
333-70691), for the registration under the Securities Act of the
Securities. Such registration statement meets the requirements set forth in
Rule 415(a)(1)(x) under the Securities Act and conforms in all other
material respects with the applicable rules and regulations of the
Commission. The Company proposes to file with the Commission pursuant to
Rule 424(b)(2) or (b)(5) under the Securities Act either (a) a supplement
to the form of prospectus included in the registration statement relating
to the Securities and the plan of distribution thereof or (b), if the
Company elects to rely on Rule 434 under the Securities Act, a Term Sheet
(as such term is hereinafter defined) relating to the Securities that will
contain such information as is required or permitted by Rules 434 and
424(b) under the Securities Act. Such
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registration statement has become effective, no stop order suspending its
effectiveness is in effect and no proceedings for such purpose are pending
or, to the knowledge of the Company, threatened by the Commission. The
registration statement, including the exhibits and schedules thereto, is
hereinafter called the "Registration Statement;" the prospectus in the form
in which it appears in the Registration Statement is hereinafter called the
"Basic Prospectus;" and such supplemented form of prospectus, (i) in the
form in which it is filed with the Commission pursuant to Rule 424(b)(2) or
(b)(5) (including the Basic Prospectus as so supplemented) or (ii), if the
Company elects to rely on Rule 434 under the Securities Act, in the form of
the Term Sheet as first filed with the Commission pursuant to Rule
424(b)(7) (together with the Basic Prospectus), is hereinafter called the
"Final Prospectus." Any preliminary form of the Final Prospectus that has
heretofore been filed pursuant to Rule 424(b) is hereinafter called the
"Preliminary Final Prospectus." Any abbreviated term sheet that satisfies
the requirements of Rule 434 under the Securities Act is hereinafter called
the "Term Sheet." Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final 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 that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final 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 Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, and deemed to be incorporated therein by reference. As
used herein, "Incorporated Documents" means the documents that at the time
are incorporated by reference in the Registration Statement , the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus.
(b) When the Final Prospectus is first filed pursuant to Rule 424(b)
under the Securities Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus is
filed with the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, the Final Prospectus, as amended
or supplemented as of any such time, and the Indenture will conform in all
material respects with the applicable requirements of the Securities Act,
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the Exchange Act and the respective rules and regulations thereunder and
(ii) neither the Registration Statement, as amended as of any such time,
nor the Final Prospectus, as amended or supplemented as of any such time,
will 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; provided, however, that the Company
makes no representations or warranties as to (i) that part of the
Registration Statement that constitutes the Statement
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of Eligibility (Form T-1) under the Trust Indenture Act of the Trustee,
(ii) information, if any, contained in the Registration Statement or Final
Prospectus relating to the Depository Trust Company ("DTC") and its
book-entry system, or (iii) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment thereof
or 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 use in connection with the
preparation of the Registration Statement and the Final Prospectus, it
being understood that the only such information specifically provided by
the Underwriters is as described in the penultimate sentence of Section
7(b).
(c) The financial statements, together with the related notes and
schedules thereto, of the Company and its consolidated subsidiaries
included in the Registration Statement and the Final Prospectus fairly
present the financial condition of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations and
cash flows for the periods therein specified; and such financial statements
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods involved,
except as otherwise stated therein. As used herein, "consolidated
subsidiaries" means each subsidiary of the Company that is included in the
consolidated financial statements of the Company contained in its annual
report to stockholders for 1997 in accordance with the consolidation
policies set forth therein or which would have been so included if it had
been a subsidiary of the Company as of the date of such consolidated
financial statements, and each other subsidiary of the Company which is
included in consolidated financial statements of the Company prepared from
time to time thereafter.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus and prior to
the Closing Date, except as set forth or contemplated in the Final
Prospectus, (i) neither the Company nor any of its consolidated
subsidiaries has entered into any transaction not in the ordinary course of
business that is material to the Company and its consolidated subsidiaries,
considered as a whole, (ii) there has been no material adverse change in
the properties, business, financial condition or results of operations of
the Company and its consolidated subsidiaries, considered as a whole, and
(iii) no legal or governmental proceeding that has materially affected the
Company or any of its consolidated subsidiaries, considered as a whole, or
the transactions contemplated by this Agreement, has been or will have been
instituted or threatened.
(e) The Company and each of its consolidated subsidiaries has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with corporate power
and authority to own or lease its properties and conduct its business as
currently conducted. The Company each of its consolidated subsidiaries is
duly qualified as a foreign corporation and is in good standing in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, other than those
jurisdictions as to which the
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failure to be so qualified or in good standing would not, individually or
in the aggregate, reasonably be expected to have a material adverse effect
on the business, financial condition or results of operations of the
Company and its consolidated subsidiaries considered as a whole ("Material
Adverse Effect").
(f) The consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not result in a breach of any of the
terms and provisions of, or constitute a default under, (i) the certificate
of incorporation or by-laws of the Company as presently in effect, (ii) any
indenture, mortgage, contract or other agreement to which the Company or
any of its consolidated subsidiaries is a party or is bound, (iii) any
rule, order statute, law or regulation applicable to the Company or any of
its consolidated subsidiaries, except, with respect to clause (ii), for
breaches and defaults that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(g) The Securities have been duly and validly authorized and, when
issued, authenticated and delivered against payment therefor in accordance
with the terms of the Indenture and this Agreement, will constitute valid
and legally binding obligations of the Company entitled to the benefits of
the Indenture, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of equity, and
will conform to the description thereof contained in the Final Prospectus.
The Indenture has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by applicable bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors' rights and general principles of
equity. The Indenture is duly qualified under the Trust Indenture Act and
conforms to the description thereof contained in the Final Prospectus.
(h) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company for the consummation of the transactions contemplated
by this Agreement in connection with the sale of the Securities, except
such as may be required under the Securities Act or under state securities
or blue sky laws.
(i) This Agreement has been duly authorized, validly executed and
delivered by the Company.
(j) The Company and its consolidated subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them
and have not received any notice of proceedings relating to the revocation
or modification of any such certificates, authorities or permits that, if
determined adversely to the Company or such subsidiaries, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect.
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(k) Except as disclosed in the Registration Statement and the Final
Prospectus, neither the Company nor any of its consolidated subsidiaries is
in violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"), owns or
operates any real property contaminated with any substance that is subject
to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(l) Except as disclosed in the Registration Statement and the Final
Prospectus, there are no pending actions, suits or proceedings against or
affecting the Company, any of its consolidated subsidiaries or any of their
respective properties that, if determined adversely to the Company or such
subsidiaries, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, or would have a material
adverse effect on the ability of the Company to perform its obligations
under this Agreement.
(m) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" as defined in
the Investment Company Act of 1940.
(n) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder,
any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; no such document when it was
filed (or, if an amendment with respect to any such document was filed,
when such amendment was filed), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and no such further
document, when it is filed, will contain an untrue statement of a material
fact or will omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
(o) Except as otherwise set forth in the Registration Statement and
the Final Prospectus, all of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's consolidated
subsidiaries have been duly authorized and validly issued and are fully
paid and non-assessable and are owned by the Company, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
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nature, except for instances that, individually and in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(p) Neither the Company nor any of its consolidated subsidiaries is
in violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in any
material bond, debenture, note or any other evidence of material
indebtedness or in any other agreement, indenture or instrument material to
the conduct of the business of the Company and its consolidated
subsidiaries, taken as a whole, to which the Company or any of its
consolidated subsidiaries is a party or by which it or any of its
consolidated subsidiaries or their respective property is bound, other than
violations and defaults that could not reasonably be expected to have a
Material Adverse Effect.
3. SALE, PURCHASE AND DELIVERY OF SECURITIES. On the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriters,
severally and not jointly, and each Underwriter, severally and not jointly
(unless otherwise indicated on Schedule I), agrees to purchase from the Company,
at the purchase price set forth in Schedule I, the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II, except
that, if Schedule I provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II, less the
respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule I, the Underwriters are authorized to solicit
offers to purchase Securities from the Company pursuant to delayed delivery
contracts ("Delayed Delivery Contracts"), substantially in the form of Schedule
III, but with such changes therein as the Company may authorize or approve. The
Underwriters will endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Representatives, for the account of the
Underwriters, on the Closing Date, the percentage set forth in Schedule I of the
principal amount of the Securities for which Delayed Delivery Contracts are
made. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. The Company
will make Delayed Delivery Contracts in all cases where sales of Contract
Securities arranged by the Underwriters have been approved by the Company but,
except as the Company may otherwise agree, each such Delayed Delivery Contract
must be for not less than the minimum principal amount set forth in Schedule I
and the aggregate principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I. The Underwriters
will not have any responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Securities to be purchased
by each Underwriter as set forth in Schedule II shall be reduced by an amount
which bears the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the
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aggregate principal amount set forth in Schedule II, except to the extent that
you determine that such reduction shall be otherwise than in such proportion and
so advise the Company in writing; provided, however, that the total principal
amount of Securities to be purchased by all Underwriters shall be the aggregate
principal amount set forth in Schedule II, less the aggregate principal amount
of Contract Securities.
Delivery of and payment for the Underwriters' Securities will be made at
the office, on the date and at the time specified in Schedule I, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date"). Delivery of
the Underwriters' Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price thereof to or
upon the order of the Company in Federal (same day) funds, or, if so indicated
on Schedule I, in New York Clearinghouse (same day) funds. Certificates for the
Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full business
days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 PM on the business day prior to the Closing Date.
If so provided in Schedule I, Underwriters' Securities will be represented
by one or more definitive global Securities in book-entry form that will be
deposited by or on behalf of the Company with DTC or DTC's designated custodian.
In such case, (a) delivery of the Underwriters' Securities will be made to the
Representatives for the respective accounts of the several Underwriters by
causing DTC to credit the Underwriters' Securities to the account of the
Representatives at DTC, and (b) the Company will cause the certificates
representing the Underwriters' Securities to be made available to the
Representatives for inspection not later than 1:00 p.m., New York City time, on
the business day prior to the Closing Date at the office of DTC or its
designated custodian.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished you a copy for your review prior to filing, and
the Company will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be timely filed with the Commission
pursuant to Rule 424 or Rule 434 under the Securities Act. The Company will
promptly advise the Representatives (i) when the Final Prospectus has been
filed with the Commission pursuant to Rule 424 or Rule 434 under the
Securities Act, (ii) when any amendment to the Registration Statement
relating to the Securities has become effective,
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(iii) of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement use of the Final Prospectus or the institution or
threatening of any proceeding for such purpose and (v) of the receipt by
the Company of any notification relating to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) The Company will prepare and file with the Commission, promptly
upon the request of the Representatives, any amendments or supplements to
the Registration Statement or Final Prospectus that, in the opinion of
counsel for the Underwriters, may be necessary to enable the several
Underwriters to continue the sale of the Securities, and the Company will
use its best efforts to cause any such amendments to become effective and
any such supplements to be filed with the Commission and approved for use
by the Underwriters as promptly as possible. If at any time when a
prospectus relating to the Securities is required to be delivered under the
Securities Act, any event relating to or affecting the Company occurs as a
result of which the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statement therein not misleading, or if
it is necessary at any time to amend or supplement the Final Prospectus to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement that will correct such statement or omission or
that will effect such compliance. For purposes of this paragraph (b), the
Company will furnish such information with respect to itself as the
Representatives may from time to time reasonably request.
(c) As soon as practicable, but not later than 90 days after the end
of the 12-month period beginning at the end of the current fiscal quarter
of the Company, the Company will make generally available to its security
holders and you an earnings statement covering a period of at least twelve
months beginning not earlier than said effective date that shall satisfy
the provisions of Section 11(a) of the Securities Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto and documents incorporated by reference
therein) and each amendment thereto that shall become effective on or prior
to the Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Securities Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
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(e) The Company will furnish such information and execute such
instruments as may be required to qualify the Securities for sale under the
securities or blue sky laws of such jurisdictions within the United States
as you designate, will continue such qualifications in effect so long as
required for distribution and will arrange for the determination of the
legality of the Securities for purchase by institutional investors. The
Company shall not be required to register or qualify as a foreign
corporation or, except as to matters and transactions relating to the offer
and sale of the Securities, consent to service of process in any
jurisdiction.
(f) The Company will pay all costs and expenses in connection with the
transactions herein contemplated, including the fees and disbursements of
its counsel; the fees, costs and expenses of preparing, printing and
delivering the Indenture and the Securities; the fees, costs and expenses
of the Trustee; accounting fees and disbursements; the costs and expenses
in connection with the qualification or exemption of the Securities under
state securities or blue sky laws, including filing fees and reasonable
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with any Blue Sky Memoranda; the costs and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including exhibits thereto) and the Basic,
Preliminary Final and Final Prospectus, the preparation and copying of this
Agreement and the furnishing to the Underwriters of such copies of each
prospectus as the Underwriters may reasonably require; and the fees of
rating agencies. It is understood, however, that, except as provided in
this Section and in Sections 7 and 8, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel and any
advertising expenses connected with any offers they may make.
(g) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer or sell, or
announce the offering of, any debt securities covered by the Registration
Statement or any other registration statement filed under the Securities
Act.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Securities are subject to
the condition that the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date are true and correct in all material respects, to the
accuracy of the written statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder to be performed on or prior to the Closing Date and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or shall be
pending, or, to the knowledge of the Company, shall be contemplated by the
Commission.
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(b) No event, nor any material adverse change in the Company's
business, financial condition or results of operations, shall have
occurred, nor shall any event exist, that makes untrue or incorrect any
material statement or information contained in the Registration Statement
or the Final Prospectus or that is not reflected in the Registration
Statement or the Final Prospectus, but should be reflected therein in order
to make the statements or information contained therein not misleading.
(c) You shall have received at the Closing Date (or prior thereto as
indicated) the following:
(i) An opinion from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President, General
Counsel and Secretary, or an Associate General Counsel of the Company,
dated the Closing Date, to the effect that:
(a) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to own or
lease its properties and conduct its business as described in the
Final Prospectus.
(b) Each consolidated subsidiary of the Company (i) that is
organized under the laws of the United States, any state thereof
or the District of Columbia and (ii) whose net assets or
operating revenues exceed 10% of the Company's consolidated net
assets or consolidated operating revenues, as the case may be, is
a corporation or other entity validly existing as a corporation
or other entity in good standing under the laws of its
jurisdiction of organization with requisite power and authority
to own or lease its properties and conduct its business as
presently conducted.
(c) The Indenture has been duly authorized, executed and
delivered by the Company and the Trustee, is duly qualified under
the Trust Indenture Act, and is a valid and legally binding
obligation of the Company enforceable in accordance with its
terms, except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of
equity.
(d) The Securities have been duly and validly authorized by
all necessary corporate action, duly executed on behalf of the
Company, and, when authenticated by the Trustee or the Trustee's
authenticating agent, and delivered to the several Underwriters
against payment therefor in accordance with the provisions of
this Agreement, in the case of the Underwriters' Securities, or
to the purchasers thereof pursuant to Delayed Delivery Contracts,
in the case of Contract Securities, will constitute legal, valid
and binding obligations of the Company enforceable in accordance
with their terms and entitled to all the benefits of the
Indenture, except as
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enforcement thereof may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the
enforceability of creditors' rights and general principles of
equity.
(e) The Indenture and the Securities conform to the
descriptions thereof in the Final Prospectus, and the statements
concerning them accurately set forth the provisions thereof
required to be set forth in the Final Prospectus.
(f) This Agreement and any Delayed Delivery Contracts have
been validly authorized, executed and delivered on behalf of the
Company.
(g) The Registration Statement and any amendments thereto
have become effective under the Securities Act, and, to the best
of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement, as amended, has been
issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act, and (1)
the Registration Statement, the Final Prospectus, and each
amendment thereof or supplement thereto (except for the financial
statements and other financial data included therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and
the Exchange Act and the respective rules thereunder; (2) such
counsel has no reason to believe that, as of its effective date,
the Registration Statement or any such amendment (except for the
financial statements and other financial data included therein,
as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final
Prospectus as amended or supplemented as of its issued date
(except for the financial statements and other financial data
included therein, as to which such counsel need express no
opinion) 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, in light of the
circumstances under which they were made, not misleading or that,
as of the Closing Date, either the Registration Statement or the
Final Prospectus as amended or supplemented (except for the
financial statements and other financial data included therein,
as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (3) the
descriptions in the Registration Statement and Final Prospectus
of statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information
required to be shown; and (4) such counsel does not know of any
legal or governmental proceedings required
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to be described in the Final Prospectus that are not described as
required, or of any contracts or documents of a character
required to be described in the Registration Statement or Final
Prospectus or to be filed as exhibits to the Registration
Statement that are not described and filed as required.
(h) The consummation of the transactions herein contemplated
and the fulfillment of the terms hereof or of any Delayed
Delivery Contracts will not result in a breach of any of the
terms and provisions of, or constitute a default under, (i) any
material indenture, mortgage, deed of trust or other agreement or
instrument to which, to the knowledge of such counsel, the
Company or any of its subsidiaries is a party, or (ii) the
certificate of incorporation or by-laws of the Company as
presently in effect or, (iii) to the knowledge of such counsel,
any order, rule or regulation applicable to the Company or any of
its subsidiaries of any court or of any federal or state
regulatory body or administrative agency or other governmental
body having jurisdiction over the Company or any of its
subsidiaries or their properties.
(i) No authorization, approval, consent, order, filing or
other action of any governmental authority or agency is required
in connection with the sale of the Securities as contemplated by
this Agreement or in any Delayed Delivery Contracts except such
as may be required under the Securities Act or under state
securities or blue sky laws.
With respect to the matters set forth in paragraph (g)(2), such
counsel may state that his belief is based upon his participation in
the preparation of the Registration Statement and the Final Prospectus
and any amendments and supplements thereto and upon review and
discussion of the contents thereof, but, except for the statements in
the Registration Statement and the Final Prospectus referred to in
paragraph (g)(3), is without independent check or verification except
as otherwise specified.
(ii) An opinion of ▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇, counsel for the Company,
dated the Closing Date, covering the matters in paragraphs (c),(d),
(e),(f),(g)(1),(g)(2),(g)(3)(other than as to legal and governmental
proceedings and contracts and other documents), (h) and (i), provided
that as to the matters set forth in paragraph (g) (2) of Section 5 (c)
(i), such counsel may state that their belief is based upon their
participation in the preparation of the Registration Statement and the
Final Prospectus and any amendments and supplements thereto (but not
the documents incorporated by reference therein) and upon review and
discussion of the contents thereof (including the documents
incorporated by reference therein), but, except for the statements in
the Registration Statement and the Final Prospectus referred to in
paragraph (g)(3) (but only as to statutes), is without independent
check or verification except as otherwise specified.
12
13
(iii) Such opinion or opinions of counsel for the Underwriters, dated
the Closing Date, as to the sufficiency of all corporate proceedings
and other legal matters relating to this Agreement, any Delayed
Delivery Contracts, the validity of the Securities, the Registration
Statement, the Final Prospectus and other related matters as you may
reasonably request. The Company shall have furnished to such counsel
such documents as they may reasonably request for the purpose of
opinions. In connection with such opinions, such counsel may rely on
representations or certificates of officers of the Company.
(iv) A certificate of the President or a Vice President, and the Chief
Financial Officer of the Company or its Treasurer, dated the Closing
Date, to the effect that:
(a) The representations and warranties of the Company in
Section 2 of this Agreement are true and correct as of the
Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or, to the
knowledge of the respective signers of the certificate, are
contemplated under the Securities Act.
(c) The signers of the certificate have carefully examined
the Registration Statement and the Final Prospectus; neither the
Registration Statement, the Final Prospectus nor any amendment or
supplement thereto includes, as of the Closing Date, any untrue
statement of a material fact or omits, as of the Closing Date, to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading; since
the latest respective dates as of which information is given in
the Registration Statement, there has been no material adverse
change in the condition (financial or otherwise), business or
results of operations of the Company and its consolidated
subsidiaries, considered as a whole, except as set forth in or
contemplated by the Final Prospectus; and since the effective
date of the Registration Statement, as amended, no event has
occurred which is required to be set forth in the Final
Prospectus which has not been so set forth.
(v) Letters from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated the date hereof (and
delivered prior to the execution and delivery of this Agreement) and
the Closing Date, addressed to you substantially in the form
heretofore approved by you.
(d) Prior to the Closing Date, the Company shall have furnished to you
such further certificates and documents as you may reasonably request.
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14
(e) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any condition of the Underwriters' obligations required to be satisfied prior
to the Closing Date is not so satisfied, this Agreement may be terminated by you
by notice in writing or by facsimile transmission to the Company.
In rendering the opinions described in Sections 5(c)(i), (ii) and (iii), counsel
for the Company, and counsel for the Underwriters may, as to matters involving
the laws of any state other than Illinois, rely upon the opinion or opinions of
local counsel satisfactory to you, but in such case a signed copy of each such
opinion shall be furnished to you.
All such opinions (including opinions, if any, of local counsel), certificates,
letters and documents will be in compliance with the provisions hereof only if
they are in all material respects satisfactory to you and to counsel for the
Underwriters, as to which both you and such counsel shall act reasonably. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and documents as you request.
You, on behalf of the Underwriters, may waive in writing the compliance by the
Company with any one or more of the foregoing conditions or extend the time for
their performance.
6. TERMINATION OF AGREEMENT. This Agreement may be terminated by you on
behalf of the Underwriters by notice in writing delivered to the Company prior
to the Closing Date if prior to such time (i) any change, or any development
involving a prospective change in or affecting particularly the business or
properties of the Company and its subsidiaries that, in your reasonable
judgment, materially impairs the investment quality of the Securities, (ii)
trading in the Company's common stock shall have been suspended by the
Commission on the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or materially limited, in
either case to such a degree as would in your judgment materially adversely
affect the market for the Securities; (iii) a general moratorium on commercial
banking activities in the State of New York or the United States shall have been
declared by Federal authorities; (iv) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act,
or any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than
announcements that have no implication of a possible downgrading), or (v) there
has occurred any material outbreak, or material escalation, of hostilities
involving the United States or other national or international calamity or
crisis, of such magnitude and severity in its effect on the financial markets of
the United States, in your reasonable judgment, as to prevent or materially
impair the marketing, or enforcement of contracts for sale, of the Securities.
If this Agreement is terminated by you because of any failure on the part of the
Company to comply with any of the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company is unable to perform its
obligations under this Agreement, the Company
14
15
shall pay, in addition to the costs and expenses referred to in Section 4(g),
all reasonable out-of-pocket expenses incurred by the Underwriters in
contemplation of the performance by them of their obligations hereunder,
including the reasonable fees and disbursements of counsel for the Underwriters,
the Underwriters' reasonable printing and travel expenses, and postage and
telephone charges relating directly to the offering contemplated by the Final
Prospectus, and also including advertising expenses incurred after the effective
date of the Registration Statement, it being understood that such out-of-pocket
expenses shall not include any compensation, salaries or wages of the officers,
partners or employees of any of the Underwriters.
The Company shall not in any event be liable to the several Underwriters for
damages on account of loss of anticipated profits arising out of the
transactions contemplated by this Agreement.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act or the Exchange Act against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement or any amendment thereof, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in the preparation thereof; and
provided, further, that the foregoing indemnification with respect to the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities, if such Underwriter failed to send or give
copies of the Final Prospectus, as amended or supplemented, excluding documents
incorporated therein by reference, to such person at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Securities Act and the untrue statement or
omission of a material fact contained in the Basic Prospectus or any Preliminary
Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus
as amended or supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
15
16
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each person, if any, who controls the Company either within
the meaning of the Securities Act or the Exchange Act, each of its
directors and each of its officers who has signed the Registration
Statement, against any losses, claims, damages or liabilities to which the
Company, any such controlling person or any such director or officer may
become subject, under the Securities Act, the Exchange Act, or otherwise,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through you specifically for use in the preparation of the
documents referred to in the foregoing indemnity, provided, however, that
in no case shall any Underwriter be liable or responsible for any amount in
excess of the underwriting discounts and commissions actually received by
such Underwriter in connection with the sale of the Securities. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page of the Final
Prospectus and under the heading "Underwriting" or "Plan of Distribution"
and, if Schedule I provides for sale of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading "Delayed
Delivery Arrangements" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the Final Prospectus, and you confirm that
such statements are correct. This indemnity agreement will be in addition
to any liability which each such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, 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 otherwise than under this Section. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate in and, to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or in addition to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt by such indemnified party of
notice from the indemnifying party of its 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 (i) the
indemnified party shall have
16
17
employed such counsel in connection with the assumption of legal defenses
in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives of the Underwriters in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) or (b), as the
case may be, who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party; provided, further, that, with respect to legal and
other expenses incurred by an indemnified party for which an indemnifying
party shall be liable hereunder, all such legal fees and expenses shall be
reimbursed by the indemnifying party as they are incurred.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the Securities
set forth in Schedule I and the Company is responsible for the balance;
provided, however, that (i) in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter
hereunder and (ii) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls
an Underwriter within the meaning of the Securities Act shall have the same
rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Securities Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (i) of this
paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
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18
8. DEFAULT BY AN UNDERWRITER. If the Underwriters' obligations to
purchase Securities pursuant to Section 3 are several and not joint and if any
one or more Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement and unless otherwise provided in
Schedule I, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II bear to the aggregate amount of
Securities set opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule II, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The respective
indemnities, agreements, representations and warranties of the Company and the
several Underwriters, set forth in or made pursuant to this Agreement, will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, the Company or any of its officers or directors or
any controlling person, and will survive delivery of and payment for the
Securities. The provisions of Sections 7 and 8 shall survive the termination or
cancellation of this Agreement.
10. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or sent by facsimile transmission and confirmed to them, at the address
specified in Schedule I ; or, if sent to the Company, will be mailed, delivered
or sent by facsimile transmission and confirmed to the Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasurer.
11. SUCCESSORS; GOVERNING LAW. This Agreement will inure to the benefit of
and be binding upon the parties hereto and the officers and directors and
controlling persons referred to in Section 8 and their respective successors,
assigns, heirs, executors and administrators, and no other persons will have any
right or obligation hereunder. The terms "successors" and "assigns" as used
herein shall not include a purchaser as such from any Underwriter. This
Agreement shall be governed by and construed and enforced in accordance with,
the internal laws of the State of Illinois.
18
19
12. BUSINESS DAY. For purposes of this Agreement, "business day"
means any day on which the New York Stock Exchange is open for trading.
If the foregoing is in accordance with your understanding of our agreement,
sign and return to us the enclosed duplicate hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
ILLINOIS TOOL WORKS INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President &
Chief Financial Officer
The foregoing Underwriting Agreement is confirmed and accepted by us in Chicago,
Illinois, acting on behalf of ourselves, the other Representatives (if any),
and the several Underwriters (if any) named in the annexed Schedule II,
as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
FIRST CHICAGO CAPITAL MARKETS, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
19
20
SCHEDULE I
UNDERWRITING AGREEMENT DATED February 19, 1999
REGISTRATION STATEMENT NO. 333-70691
REPRESENTATIVES: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
First Chicago Capital Markets, Inc.
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES:
Title: 5 3/4% Notes due ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Principal Amount: $500,000,000
Price to Public: 99.931%
Purchase Price by Underwriter
(include accrued interest or
amortization if applicable): 99.281%
Maturity: March 1, 2009
Interest Rate: 5 3/4%
Interest Payment Dates: March 1 and September 1
Regular Record Dates: February 15 and August 15
Redemption Provisions: At the Company's option at any time at a price
equal to the greater of par or a make-whole amount
calculated on the basis of 12.5 basis
points over the applicable Treasury Rate
Sinking Fund Provisions: None
Other Provisions: None
SALE AND DELIVERY PROVISIONS UNDER SECTION 3:
Obligation to Purchase is: several and not joint [X]
21
several and not joint;
provided, however that,
notwithstanding the
provisions of Section 9 of
the Underwriting Agreement,
the Representative(s)
listed above will, subject
to the terms and conditions
hereof, purchase or cause
to be purchased any
Securities which any
defaulting Underwriter or
Underwriters have agreed
but failed or refused to
purchase pursuant to
Section 3 hereof [_]
joint and several [_]
Payment to Be Made in: New York Clearinghouse (same day) funds [_]
or Federal (same day) funds [X]
Delivery of Securities: Physical delivery to Underwriters through
Representatives [_]
or delivery to Underwriters
through facilities of DTC
by delivery to DTC of one
or more definitive global
securities in book-entry
form [X]
CLOSING DATE, TIME AND LOCATION: 9:00 a.m., February 24, 1999, at the offices of
▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ADDRESS FOR NOTICE TO REPRESENTATIVES: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
First Chicago Capital Markets, Inc.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
2
22
SCHEDULE II
PRINCIPAL
UNDERWRITERS AMOUNT
------------ ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $250,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 150,000,000
Incorporated
First Chicago Capital Markets, Inc. 100,000,000
-----------
Total $500,000,000
===========
23
SCHEDULE III
DELAYED DELIVERY CONTRACT
, 19
[Insert name and address of lead Representative]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Illinois Tool Works Inc.
(the "Company"), and the Company agrees to sell to the undersigned, on [ ], 19 ,
(the "Delivery Date"), $[ ] principal amount of the Company's [ ] (the
"Securities") offered by the Company's Final Prospectus dated [ ], 19 , receipt
of a copy of which is acknowledged, at a purchase price of [ ]% of the principal
amount thereof, plus accrued interest, if any, thereon from [ ], 19 , to the
date of payment and delivery, and on the further terms and conditions set forth
in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 AM on the Delivery Date to or upon the order of the Company
in New York Clearinghouse (same day) funds or Federal (same day) funds, as
specified in Schedule I to the Underwriting Agreement referred to in the Final
Prospectus mentioned above, at your office or at such other place as shall be
agreed between the Company and the undersigned upon delivery to the undersigned
of the Securities in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may request by
written communication addressed to the Company not less than five full business
days prior to the Delivery Date. If no request is received, the Securities will
be registered in the name of the undersigned and issued in a denomination equal
to the aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(i) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (ii) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
24
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed and enforced in
accordance with, the internal laws of the State of Illinois.
Very truly yours,
(Name of Purchaser)
By
------------------------------
(Signature and Title of Officer)
(Address)
Accepted:
ILLINOIS TOOL WORKS INC.
By
----------------------------
(Authorized Signature)
