Exhibit 1(a)
CASE CORPORATION
Debt Securities
FORM OF
UNDERWRITING AGREEMENT
[Date]
To the Underwriter or
Underwriters named in
the within mentioned
Terms Agreement
Ladies and Gentlemen:
1. Introductory. Case Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) (the "Securities"). The Securities will be issued under an indenture, dated
as of July 31, 1995 (the "Indenture"), between the Company and The Bank of New
York, as Trustee (the "Trustee"), in one or more series, which series may vary
as to interest rates, maturities, redemption provisions, selling prices and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale. Particular series of the Securities, will
be sold pursuant to a Terms Agreement referred to in Section 3, for resale in
accordance with terms of offering determined at the time of sale.
The Securities involved in any such offering are hereinafter referred
to as the "Offered Securities". The firm or firms which agree to purchase the
Offered Securities are hereinafter referred to as the "Underwriters" of such
Offered Securities, and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the "Representatives"; provided, however, that if
the Terms Agreement does not specify any representative of the Underwriters, the
term "Representatives", as used in this Agreement (other than in Sections 2(b),
5(c) and 6 and the second sentence of Section 3), shall mean the Underwriters.
2. Representations and Warranties.
The Company, as of the date of each Terms Agreement referred to in
Section 3, represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 333-[ ]), including a prospectus,
relating to the Securities has been filed with the Securities and Exchange
Commission ("Commission") and has been declared effective under the
Securities Act of 1933, as amended (collectively with all rules and
regulations of the Commission thereunder, the "Act"). Such registration
statement, as amended at the date of any Terms Agreement referred to in
Section 3 (the "Terms Agreement Date"), including all documents
incorporated therein by reference and all exhibits thereto, is hereinafter
referred to as the "Registration Statement," and the prospectus included in
the registration statement No. 333-[ ], as supplemented as contemplated by
Section 3 to reflect the terms of the applicable Offered Securities and the
terms of offering thereof as most recently filed, or transmitted for
filing, with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Act including all material and information
incorporated by reference therein, is hereinafter referred to as the
"Prospectus," except that if any revised prospectus shall be provided to
the Underwriters by the Company for use in connection with the offering of
Securities, which differs from the Prospectus most recently filed, or
transmitted for filing, with the Commission (whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b)),
the term "Prospectus" shall refer to such revised prospectus from and after
the time it is first provided to the Underwriters for such use, including
all material and information incorporated by reference therein. All
references in this Agreement to financial statements and schedules and
other information that is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (and
all other references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information that are
or are deemed to be incorporated by reference in the Registration Statement
or the Prospectus, as the case may be. Any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration
Statement, any
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preliminary prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of
1934, as amended (together with all rules and regulations of the Commission
thereunder, the "Exchange Act"), after the effective date of the
Registration Statement, or the issue date of any preliminary prospectus or
the Prospectus, as the case may be, and on or prior to the completion of
the applicable offering and which is deemed to be incorporated therein by
reference. Copies of such Registration Statement and the Prospectus
relating thereto, any such amendment or supplement and all documents
incorporated by reference therein which were filed with the Commission on
or prior to the Terms Agreement Date (including one fully executed copy of
the Registration Statement and of each amendment thereto for counsel for
the Underwriters) have been delivered to each of the Representatives. The
Registration Statement and the Prospectus shall be in all material respects
in the form furnished to the Underwriters prior to the Terms Agreement Date
or, to the extent not completed or required to be amended at the Terms
Agreement Date, shall contain only such additional material information and
other material changes as the Company has advised the Underwriters, a
reasonable time prior to the Terms Agreement Date, is to be included or
made therein and as to which the Underwriters have not reasonably objected.
(b) On the effective date of the Registration Statement relating to
the Registered Securities (the "Effective Date"), such registration
statement conformed as to form in all material respects to the requirements
of the Act, the Trust Indenture Act of 1939, as amended (collectively with
all rules and regulations of the Commission thereunder, "Trust Indenture
Act"), and the other applicable rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the date of each Terms Agreement referred to in Section 3, the Prospectus
will conform as to form in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations, and on such
date the Prospectus will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the
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statements therein, in light of the circumstances under which they were
made, not misleading, except that the foregoing does not apply to (a)
statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein and (b) that part of
the Registration Statement that constitutes the Statement of Eligibility on
Form T-1 of the Trustee under the Trust Indenture Act filed as an exhibit
to the Registration Statement (the "Form T-1").
(c) (A) No stop order suspending the effectiveness of the Registration
Statement is in effect and, to the knowledge of the Company, no proceedings
for that purpose are pending before or threatened by the Commission and (B)
each document, if any, filed or to be filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied or will comply
when so filed as to form in all material respects with the Exchange Act and
did not, or will not when so filed, contain an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in the light of the circumstances under which they were
made, not misleading, excluding any statement in any such document that
does not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 under the Act; provided, however, that this
representation and warranty shall not apply to any statements in or
omissions from any such documents based upon written information furnished
to the Company by any Underwriter, through the Representatives, if any,
specifically for use therein.
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or leasing of property or the conduct
of its business requires such qualification, other than any failure to be
so qualified or in good standing as would not singly or in the aggregate
with all such other failures reasonably be expected to have a material
adverse effect on the assets, liabilities, results of operations or
financial condition of the Company and its consolidated subsidiaries (as
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defined in Rule 1-02(x) of the Commission's Regulation S-X), taken as a
whole (a "Material Adverse Effect").
(e) Each subsidiary (including, if applicable, partnerships of which
the Company is a general partner) of the Company that meets the conditions
for a "significant subsidiary" set forth in Rule 1-02(w) of the
Commission's Regulation S-X (collectively, the "Subsidiaries") is duly
organized and validly existing as a corporation or partnership in good
standing (if applicable) under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified to transact business as a
foreign corporation or partnership and is in good standing (if applicable)
in each jurisdiction in which the conduct of its business or its ownership,
leasing or operation of property requires such qualification, other than
any failure to be so qualified or in good standing as would not singly or
in the aggregate with all such other failures reasonably be expected to
have a Material Adverse Effect.
(f) The Indenture has been duly authorized by the Company and has been
duly qualified under the Trust Indenture Act; the Indenture complies as to
form in all material respects with the requirements of the Trust Indenture
Act; the Indenture has been duly executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights,
to public policy considerations and to general equity principles; the
Offered Securities have been duly authorized by the Company; and when the
Offered Securities are delivered and paid for pursuant to the Terms
Agreement on the Closing Date (as defined below) or pursuant to Delayed
Delivery Contracts (as hereinafter defined), such Offered Securities will
have been duly executed, authenticated, issued and delivered by the Company
and will conform in all material respects to the description thereof
contained in the Prospectus, and such Offered Securities will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance
with their
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terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to public policy
considerations and to general equity principles.
(g) The Offered Securities have been approved for listing on the stock
exchange, if any, indicated in the Terms Agreement, subject to notice of
issuance.
(h) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance and sale of the Offered Securities by the Company, except such as
are required under the Act and the Trust Indenture Act and such as may be
required under state securities laws.
(i) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof do not and
will not (i) contravene any provision of the certificate of incorporation,
by-laws or other organizational documents of the Company or of any of the
Subsidiaries, or (ii) conflict with or result in a breach or violation of
any of the terms and provisions of, or constitute a default under
(including, without limitation, any event which with notice or lapse of
time, or both, would constitute a default under), or result in the creation
or imposition of any lien, charge or encumbrance upon any assets or
properties of the Company or of any of the Subsidiaries under, any statute,
rule, regulation, order or decree of any governmental agency or body or any
court having jurisdiction over any of them or any of their respective
properties, assets or operations, or any indenture, mortgage, loan
agreement, note or other agreement or instrument for borrowed money, any
guarantee of any agreement or instrument for borrowed money or any lease,
permit, license or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the properties, assets or
operations of any of them is subject, other than any such breach,
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violation, default, lien, charge or encumbrance as would not singly or in
the aggregate with all such other breaches, violations, defaults, liens,
charges or encumbrances reasonably be expected to have a Material Adverse
Effect.
(j) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(k) The Company and the Subsidiaries have such certificates, permits,
licenses, franchises, consents, approvals, orders, authorizations and
clearances from appropriate governmental agencies and bodies ("Licenses")
as are necessary to own, lease or operate their properties and to conduct
their businesses in the manner described in the Prospectus, and all such
Licenses are valid and in full force and effect, other than any failure to
have any such License or any failure of any such License to be valid and in
full force and effect as would not singly or in the aggregate with all such
other failures have a Material Adverse Effect.
(l) Except as set forth in the Registration Statement and the
Prospectus, the properties, assets and operations of the Company and the
Subsidiaries are in compliance in all material respects with all applicable
Federal, state, local and foreign laws, rules and regulations, orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling, disposal,
transportation or release of hazardous materials (collectively,
"Environmental Laws"), other than any such failure to be in compliance as
would not singly or in the aggregate with all such other failures known to
the Company reasonably be expected to have a Material Adverse Effect. With
respect to such properties, assets and operations, including any previously
owned, leased or operated properties, assets or operations, to the best
knowledge of the Company and except as set forth in the Registration
Statement and the Prospectus, there are no past, present or reasonably
anticipated future events, conditions, circumstances, activities,
practices, incidents, actions or plans of the
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Company or any of the Subsidiaries that may interfere with or prevent
compliance or continued compliance in all material respects with applicable
Environmental Laws, other than any such interference or prevention as would
not singly or in the aggregate with any such other interference or
prevention known to the Company reasonably be expected to have a Material
Adverse Effect.
(m) Except as set forth in the Registration Statement and the
Prospectus, there are no pending actions, suits, proceedings or
investigations against or affecting the Company or any of the Subsidiaries,
or with respect to which the Company or any of the Subsidiaries is
responsible by way of indemnity or otherwise, that would singly or in the
aggregate with all such other actions, suits, investigations or proceedings
reasonably be expected to have a Material Adverse Effect, or reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement, the Indenture, the Offered
Securities or any Delayed Delivery Contract; and, to the best knowledge of
the Company, except as set forth in the Registration Statement and the
Prospectus, no such actions, suits, proceedings or investigations are
threatened.
(n) Since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Prospectus, except as
disclosed in or contemplated by the Prospectus: (A) Neither the Company nor
any Subsidiary has sustained any material loss or interference with its
consolidated business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance); (B) There has been
no material increase in the long-term indebtedness of the Company, no
material change in the capital stock of the Company and no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock not consistent with past practice; and (C) There has
not been or become known any Material Adverse Effect, or any development
that could singly or in the aggregate with all other developments
reasonably be expected to result in a Material Adverse Effect.
(o) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the
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Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(p) Except as set forth in the Registration Statement and the
Prospectus, no labor disturbance by the employees of the Company or any of
the Subsidiaries exists or, to the best knowledge of the Company, is
threatened, that would singly or in the aggregate with all such other labor
disturbances reasonably be expected to have a Material Adverse Effect.
(q) The audited consolidated financial statements of the Company and
related schedules, if any, and notes included or incorporated by reference
in the Registration Statement and the Prospectus comply in all material
respects with the requirements of the Exchange Act and the Rules and
Regulations, were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein) and fairly present the consolidated financial
condition, results of operations, cash flows, changes in equity and changes
in stockholders' equity of the Company on a consolidated basis at the dates
and for the periods presented. The unaudited consolidated financial
statements of the Company and the related notes included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the consolidated financial condition, results of operations, cash flows,
changes in equity and changes in stockholders' equity of the Company at the
dates and for the periods to which they relate, subject to year-end audit
adjustments, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as otherwise
stated therein) and have been prepared on a basis substantially consistent
with that of the audited financial statements referred to above, except as
otherwise stated therein. The historical financial information and
statistical data, if any, set forth or incorporated by reference in the
Prospectus under the captions "Summary Historical and Pro Forma Financial
Data of the Company," "Selected Historical Financial Data of the Company"
and "Capitalization of the Company" or under any similar caption present
fairly the information shown therein and, except as otherwise stated
therein, have been compiled on a basis consistent with that of the audited
consolidated financial statements of the Company included or incorporated
by reference in the
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Registration Statement and the Prospectus. If pro forma financial
statements with respect to the Company are included or incorporated by
reference in the Registration Statement and the Prospectus, such pro forma
financial statements and other pro forma financial information included in
the Prospectus present fairly the information shown therein, have been
prepared in all material respects in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements, have been
properly compiled on the pro forma basis described therein and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein. No pro forma
financial statements or other pro forma financial information with respect
to the Company is required to be included or incorporated by reference in
the Registration Statement and the Prospectus other than those included or
incorporated by reference therein. The Company's ratios of earnings to
fixed charges (actual and, if any, pro forma) included or incorporated by
reference in the Prospectus under the caption "Ratio of Earnings to Fixed
Charges" and in Exhibit 12 to the Registration Statement have been
calculated in compliance with Item 503(d) of Regulation S-K of the
Commission and the supporting schedules included in the Registration
Statement present fairly the information required to be stated therein.
3. Purchase and Offering of Offered Securities. The obligation of
the Underwriters to purchase the Offered Securities will be evidenced by an
agreement substantially in the form of Annex II attached hereto ("Terms
Agreement") at the time the Company determines to sell the Offered Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the firm or
firms which will be Underwriters, the names of any Representatives, the
principal amount to be purchased by each Underwriter, the purchase price to be
paid by the Underwriters and the terms of the Offered Securities not already
specified in the Indenture, including, but not limited to, interest rate,
maturity, any redemption provisions and any sinking fund requirements and
whether any of the Offered Securities may be sold to institutional investors
pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement
will also specify the time and date of delivery and payment (such time and date,
or such other time not later
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than ten full business days thereafter as the Underwriter first named in the
Terms Agreement (the "Lead Underwriter") and the Company agree as the time for
payment and delivery, being herein and in the Terms Agreement referred to as the
"Closing Date"), the place of delivery and payment and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities. The obligations of the Underwriters to
purchase the Offered Securities will be several and not joint. It is understood
that the Underwriters propose to offer the Securities for sale as set forth in
the Prospectus.
If the Terms Agreement provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex I attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. 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. On the
Closing Date the Company will pay, as compensation, to the Lead Underwriter for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the principal amount of Offered Securities to be sold pursuant to
Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not
have any responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company at its option executes and delivers Delayed
Delivery Contracts, the Contract Securities will be deducted from the Offered
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter will
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in such Terms Agreement, except to
the extent that the Lead Underwriter determines that such reduction shall be
otherwise than pro rata and so advises the Company. The Company will advise the
Lead Underwriter not later than the business day prior to the Closing Date of
the principal amount of Contract Securities.
If the Terms Agreement does not specify "Book-Entry Only" settlement,
the Offered Securities delivered to the Underwriters on the Closing Date will be
in definitive fully registered form, in such denominations and registered in
such names as the Lead Underwriter requests.
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If the Terms Agreement specifies "Book-Entry Only" settlement or
otherwise states that the provisions of this paragraph shall apply, the Company
will deliver against payment of the purchase price the Offered Securities in the
form of one or more permanent global Offered Securities in definitive form (the
"Global Securities") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") or with DTC and registered in the name of a nominee for
DTC. Interests in any permanent global Offered Securities will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Prospectus. Payment for the Offered Securities shall be made by the
Underwriters in Federal (same day) funds by official check or checks or wire
transfer to an account in New York or Chicago previously designated to the Lead
Underwriter by the Company at a bank reasonably acceptable to the Lead
Underwriter, in each case drawn to the order of Case Corporation at the place of
payment specified in the Terms Agreement on the Closing Date, against delivery
to the Trustee as custodian for DTC or to DTC of the Global Securities
representing all of the Offered Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that in connection with each offering of Offered
Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(1) or (2), as applicable
(or, if applicable and if consented to by the Lead Underwriter (which
consent shall not be unreasonably withheld), subparagraph (4) or (5), as
applicable), not later than the second business day following the execution
and delivery of the Terms Agreement or, if applicable, such later time as
may be permitted by Rule 424.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement (including any
post-effective amendment) or the Prospectus (including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Offered Securities which differs from
the prospectus most recently filed, or transmitted for filing, with the
Commission, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b)) and will afford the Lead Underwriter a reasonable
opportunity to comment on any such proposed amendment or supplement and,
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after the date of the Terms Agreement and prior to the later of the
purchase and payment for the Offered Securities on the Closing Date and the
completion of distribution by the Underwriters of the Offered Securities,
will not effect any such amendment or supplementation without the prior
consent of the Lead Underwriter, which consent shall not be unreasonably
withheld or delayed, unless in the opinion of counsel for the Company such
amendment or supplement is required by law; and the Company will also
advise the Lead Underwriter promptly of (i) the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of any
part thereof, (ii) of the receipt of any comments from the Commission or of
any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information and (iii) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Offered Securities for offer and sale in any jurisdiction or the initiation
of any proceeding for such purpose; and to use its best efforts to prevent
the issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs, condition exists or
information becomes known as a result of which the 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 statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to
comply with the Act, the Company promptly will notify the Lead Underwriter
of such event, condition or information and will, subject to paragraph (b)
of this Section 4, promptly prepare and file with the Commission, at its
own expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance. Neither the
Lead Underwriter's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
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(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement complying with Section 11(a) of
the Act and the Rules and Regulations (including at the option of the
Company Rule 158 under the Act).
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests.
(f) The Company will arrange for the qualification of the Offered
Securities under the laws of such jurisdictions as the Lead Underwriter
reasonably designates and will continue such qualifications in effect so
long as required for the distribution; provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives upon their
request and, upon request, to each of the other Underwriters, if any, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year if the Company prepares such a report;
and the Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as the Lead Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement), including, without limitation, all costs and expenses (i)
incurred in connection with the preparation, issuance, execution and
delivery of the Offered Securities, (ii) incurred in connection with the
preparation, printing and filing under the Act and the Exchange Act, if
applicable,
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of the Registration Statement, the Prospectus, any preliminary prospectus
and each prospectus supplement (including in each case all exhibits,
amendments and supplements thereto), (iii) in connection with the listing,
if any, of the Offered Securities on any securities exchange set forth in
the Terms Agreement, (iii) incurred in connection with the engagement of
any qualified independent underwriter as may be required by rules and
regulations of the National Association of Securities Dealers, Inc., (iv)
incurred in connection with the rating of the Offered Securities, (v)
relating to the fees and expenses of the Trustee, including the fees and
expenses of counsel to the Trustee and (vi) relating to or in connection
with the duplication costs and delivery of this Agreement, the Terms
Agreement, the Indenture, any supplemental indenture relating thereto, the
agreement among underwriters, each other document or instrument relating to
the underwriting arrangements and any dealer agreements, and will reimburse
the Underwriters (if and to the extent incurred by them) for any filing
fees or other expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the Offered Securities
for sale under the laws of such jurisdictions as the Lead Underwriter may
reasonably designate and the printing of memoranda relating thereto, for
any applicable filing fee of the National Association of Securities
Dealers, Inc. relating to the Offered Securities, for any travel expenses
of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of Registered Securities and for expenses incurred in
distributing the Prospectus, any preliminary prospectuses, any preliminary
prospectus supplements or any other amendments or supplements to the
Prospectus to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having
a maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge, disposal or
filing, without the prior consent of the Lead Underwriter for a period
beginning at the time of execution of the Terms
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Agreement and ending the number of days after the Closing Date specified
under "Blackout" in the Terms Agreement.
(j) During the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Company will file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act within the time period required by the
Exchange Act.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein on and as of the Closing Date as if made on
and as of the Closing Date, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On or prior to the date of the Terms Agreement, the
Representatives shall have received a letter, dated the date of delivery
thereof, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(b) If any amendment to the Registration Statement filed prior to
the Terms Agreement Date has not been declared effective as of the Terms
Agreement Date, such amendment shall have been declared effective not later
than 5:30 p.m. (New York City time) on the Terms Agreement Date. The
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 4(a) of this Agreement. No stop order
suspending the effectiveness of the Registration Statement or of any part
thereof shall have been issued and be continuing in effect and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission. No amendment or supplement to the
-16-
Prospectus shall have been filed to which the Lead Underwriter shall have
objected pursuant to Section 4(b).
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly, the business or
properties of the Company or its subsidiaries which, in the judgment of a
majority in interest of the Underwriters including any Representatives,
materially impairs the investment quality of the Offered Securities; (ii)
any downgrading in the rating of any debt securities or preferred stock of
the Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or review
with possible negative implications its rating of any debt securities or
preferred stock of the Company; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any exchange or in the over-
the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including any Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, special counsel for the Company, or other counsel for the Company
reasonably satisfactory to the Representatives, substantially to the effect
that:
(i) The Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified
-17-
to do business as a foreign corporation in good standing in all other
jurisdictions within the United States of America in which its ownership or
leasing of property or the conduct of its business requires such
qualification and where the failure to be so qualified or in good standing
would have a material adverse effect upon its operations or financial
condition;
(ii) The Indenture has been duly authorized, executed and delivered by
the Company, has been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles; the Indenture complies as to form in all
material respects with the requirements of the Trust Indenture Act; the
Securities have been duly authorized by the Company; the Offered Securities
(other than any Contract Securities) have been duly executed, authenticated
and delivered by the Company; the Offered Securities other than any
Contract Securities constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the Indenture
and sold pursuant to Delayed Delivery Contracts, will constitute, valid and
legally binding obligations of the Company enforceable against the Company
in accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights,
to public policy considerations and to general equity principles; and the
Offered Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold will conform, in
all material respects to the description thereof contained in the
Prospectus;
(iii) No consent, approval, authorization or order of, or filing with,
any governmental agency or
-18-
body or any court is required for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of this
Agreement) in connection with the issuance or sale of the Offered
Securities by the Company, except such as are required and have been
obtained and made under the Act and the Trust Indenture Act and such as may
be required under state securities laws (it being understood that such
opinion may be limited to such consents, approvals, authorizations, orders
and filings which, in such counsel's experience, are customarily applicable
to transactions of the type contemplated by this Agreement, the Terms
Agreement and the Indenture);
(iv) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any material statute, rule, regulation or order
of any governmental agency or body or any court having jurisdiction over
the Company, any Subsidiary incorporated in the United States of America or
any of their respective properties known to such counsel, or the charter or
by-laws of the Company, or any such Subsidiary; and the Company has full
power and authority to authorize, issue and sell the Offered Securities as
contemplated by the Terms Agreement (including the provisions of this
Agreement);
(v) The Registration Statement has become effective under the Act,
the Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) specified in such opinion on the date specified therein,
and, to the best of the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act, and the registration statement
relating to the Securities, as of its effective date, the Prospectus, as of
the date of the Terms Agreement, and any amendment or supplement
-19-
thereto, as of its date, complied as to form in all material respects with
the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations; such counsel have no reason to believe that such registration
statement, as of its effective date, or any amendment thereto, as of its
date, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of the date of
the Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date, contained any untrue statement of a
material fact or omitted 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; it being understood that such counsel need
express no opinion as to the financial statements or other financial and
statistical data contained in the Registration Statement or the Prospectus;
(vi) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company; and
(vii) Each document filed pursuant to the Exchange Act (other than the
financial statements, schedules and other financial and statistical data
included therein, as to which such counsel need express no opinion) and
incorporated or deemed to be incorporated by reference in the Prospectus
complied as to form in all material respects with the applicable
requirements of the Exchange Act when so filed.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
Representatives on or prior to the Closing Date.
(e) The Representatives shall have received a signed opinion, dated
the Closing Date and addressed to the Underwriters, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
General Counsel
-20-
and Secretary of the Company, substantially to the effect that:
(i) To the best of his knowledge, no consent, approval or
authorization of any third party is required for the consummation of
the transactions contemplated by the Terms Agreement (including the
provisions of this Agreement) in connection with the issuance or sale
of the Offered Securities by the Company, except such as have been
obtained and made and are in full force and effect and such as may be
required under state securities laws;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under (including, without
limitation, any event or condition which, with notice or lapse of
time, or both, would constitute a default under), any material
agreement or instrument known to such counsel to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of the properties of the Company or any
Subsidiary is subject;
(iii) Except as set forth in the Prospectus, there are no
material pending legal proceedings known to such counsel to which the
Company or any Subsidiary is a party or of which the property of the
Company or any Subsidiary is the subject, and to the best knowledge of
such counsel no such proceeding is contemplated; and
(iv) Such counsel has no reason to believe that the registration
statement relating to the Registered Securities, as of its effective
date, or any amendment thereto, as of its date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of the date of the
Terms Agreement or as of such Closing Date, or any amendment or
supplement thereto, as of its date
-21-
or as of the Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits 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; it being
understood that such counsel need express no opinion as to the
financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
Representatives on or prior to the Closing Date.
(f) The Representatives shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriters, or other counsel for the
Underwriters reasonably satisfactory to the Company and the
Representatives, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities, the Indenture, the Delayed Delivery Contracts, if any, the
Registration Statement, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate or
certificates, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the Company in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company in this Agreement are true and correct in all material respects,
that the Company has complied in all material respects with all agreements
and satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that no
stop order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and is in effect and, to such officer's
knowledge, no proceedings for that purpose have been instituted or are
contemplated
-22-
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material adverse
change in the financial position or results of operations of the Company or
its subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate and reasonably
acceptable to the Lead Underwriter.
(h) The Representatives shall have received a letter, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (a) of this
Section, except that the specified date referred to in such subsection will
be a date not more than three days prior to the Closing Date for the
purposes of this subsection.
(i) On the Terms Agreement Date (or as otherwise specified in the
Terms Agreement), the Offered Securities shall have been approved for
listing on the securities exchange set forth in the Terms Agreement upon
notice of issuance.
(j) The Company shall have complied with the provisions of Section
4(e) hereof with respect to the furnishing of Prospectuses.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act and Section 20 of the Exchange Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including any information deemed
-23-
included in the Registration Statement by virtue of Rule 430A under the Act
or Rule 434 under the Act, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to the fourth sentence of Section 6(c), the fees and disbursements
of counsel chosen by the Lead Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Lead Underwriter expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in the Terms Agreement; provided, further,
however, that the foregoing indemnity with
-24-
respect to any untrue statement in or omission from any preliminary prospectus
or preliminary prospectus supplement shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Offered Securities if (i) the Company has complied with Section
4(b), (c) and (e) of this Agreement, and (ii) a copy of the Prospectus had not
been sent or given to such person at or prior to the written confirmation of the
sale of such Offered Securities to such person if required by the Act and the
Prospectus would have cured the defect giving rise to such loss, claim, damage
or liability. For purposes of the second proviso to the immediately preceding
sentence, the term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Underwriter shall be obligated to send
or give any supplement or amendment to any document incorporated by reference in
any preliminary prospectus or the Prospectus to any person.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who signed the Registration Statement,
and each person if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity agreement in
Section 6(a), as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Lead Underwriter expressly for use in the Registration Statement (or
any amendment thereto), or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnification may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by the Lead Underwriter, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate
-25-
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent
includes an unconditional written release in form and substance satisfactory to
the indemnified parties of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent it reasonably
considers such request to be reasonable and (ii) provides written notice to the
indemnified party substantiating
-26-
the unpaid balance as unreasonable, in each case prior to the date of such
settlement.
(e) If the indemnification provided for in Section 6(a) or (b) hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Offered
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Offered
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Offered Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 under the Act is used, the corresponding location on the related term
sheet, bear to the aggregate initial public offering price of the Offered
Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
-27-
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 6(e). The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 6(e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6(e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 6(e) are several
in proportion to the principal amount of the Offered Securities set forth
opposite their respective names in Schedule A to the Terms Agreement and not
joint.
7. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered
-28-
Securities under the Terms Agreement and the aggregate principal amount of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total principal amount of Offered
Securities, the Lead Underwriter may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons, including
any of the Underwriters, but if no such arrangements are made by the Closing
Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments under the Terms Agreement (including
the provisions of this Agreement), to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to the Lead
Underwriter and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, the Terms Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 8. As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 7. Nothing herein will relieve a defaulting Underwriter from liability
for its default. The respective commitments of the several Underwriters for the
purposes of this Section 7 shall be determined without regard to reduction in
the respective Underwriters' obligations to purchase the principal amounts of
the Offered Securities set forth opposite their names in the Terms Agreement as
a result of Delayed Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to the Terms Agreement (including the provisions of
this Agreement) will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person of any of them, and will survive
delivery of and payment for the Offered Securities. If the Terms Agreement is
terminated pursuant to Section 7 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company shall
remain
-29-
responsible for the expenses to be paid or reimbursed by it pursuant to Section
4 and the respective obligations of the Company and the Underwriters pursuant to
Section 6 and the provisions of Section 13 shall remain in effect. If the
purchase of the Offered Securities by the Underwriters is not consummated for
any reason other than solely because of the termination of the Terms Agreement
pursuant to Section 7 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 5(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to them at their address set forth in the Terms Agreement or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer.
10. Successors. The Terms Agreement (including the provisions of
this Agreement) will inure to the benefit of and be binding upon the Company and
such Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for
the several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. This Agreement and the Terms Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
-30-
If the foregoing is in accordance with your understanding, please sign
and return six counterparts hereof.
Very truly yours,
CASE CORPORATION
By:
_____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
[NAMES OF UNDERWRITERS]
-31-
ANNEX I
(Three copies of this Delayed Delivery Contract should
be signed and returned to the address shown below
so as to arrive not later than 9:00 A.M., New York
time, on ..........., 19....*)
DELAYED DELIVERY CONTRACT
-------------------------
[ ], [ ]
CASE CORPORATION
c/o [Insert name of Underwriter]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Case Corporation, a
Delaware corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on ____________, 19 ("Delivery Date"),]
$..............
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated __________, 19 and a Prospectus
Supplement dated ________________, 19 relating thereto, receipt of copies of
which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
---------------------
* Insert date that is two full business days prior to Closing Date under
Terms Agreement.
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Delivery Date Principal Amount
------------- ----------------
......................... .............
......................... .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
by certified or official bank check in --New York--Chicago--Clearing House (next
day) --Federal (same day)-- funds at the office of at .M.
on--the--such--Delivery Date upon delivery to or for the account of the
undersigned of the Securities to be purchased by the undersigned--for delivery
on such Delivery Date--in definitive fully registered form and-- in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to--the--such--Delivery Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and accept
payment for, and the obligation of the undersigned to take delivery of and make
payment for, Securities on--the--each--Delivery Date shall be subject only to
the conditions that (1) investment in the Securities shall not at--the--such--
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject and (2) the Company shall have sold
to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the 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--copies--of the opinion[s] of
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counsel for the Company delivered to the Underwriters in connection therewith.
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 the acceptance of any such Contract 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 requested 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 when such counterpart is so mailed or delivered.
Yours very truly,
..............................
(Name of Purchaser)
By
..........................
..............................
(Title of Signatory)
..............................
..............................
(Address of Purchaser)
Accepted, as of the above date.
CASE CORPORATION
By ___________________________
(Insert Title]
-34-
[Form of Terms Agreement]
ANNEX II
CASE CORPORATION
("Company")
Debt Securities
TERMS AGREEMENT
---------------
[ ], 199[ ]
To: The [Representative[s] of the] Underwriters identified herein
Ladies and Gentlemen:
Case Corporation agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the document entitled "Case Corporation, Debt
Securities, Underwriting Agreement" dated [ ], [ ] a copy of which is
attached hereto as Annex I ("Underwriting Agreement"), the following securities
("Offered Securities") on the following terms:
Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
.
Principal Amount: $ .
Interest: [ % per annum, from , 19 , payable semiannually
on and , commencing , 19 , to holders of record on
the preceding or , as the case may be.] [Zero coupon.]
[[If Floating Rate Notes, add:]
Interest Rate Basis (Commercial Paper, Prime, LIBOR, Treasury, CD,
Federal Funds, CMT, Other):
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Index Maturity (30, 60, 90 days, 6 months, 1 year, other):
Interest Reset Period (daily, weekly, monthly, quarterly, semiannually,
annually):
Interest Payment Period (monthly, quarterly, semiannually, annually):
Spread:
Spread Multiplier:
Maximum Interest Rate:
Minimum Interest Rate:
Initial Interest Reset Date:
Interest Reset Date:
Interest Determination Dates:
Interest Payment Dates:
Calculation Agent:
Calculation Date:]
Maturity: , .
Optional Redemption:
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be ,
19 . Underwriters' fee % of the principal is amount of the Contract
Securities.]
Purchase Price: % of principal amount, plus accrued interest[, if
any,] from , 19 .
Expected Reoffering Price: % of principal amount, subject to change by
the [Representative[s]] [Underwriters].
Closing: A.M. on , 19 , at the offices of ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, [[in New York]
[Chicago] Clearing House [Federal (same day)] funds.
-36-
Settlement and Trading: [Physical certificated form.] [Book-Entry Only via
DTC.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference in their entirety and shall be deemed to be a part of this Terms
Agreement to the same extent as if the Underwriting Agreement had been set forth
in full herein. Terms defined in the Underwriting Agreement are used herein as
therein defined.
[The Offered Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the
Closing Date.]
For purposes of Section 6 of the Underwriting Agreement, the only
information furnished to the Company by any Underwriter for use in the
Prospectus consists of [(i)] the following information in the Prospectus
furnished on behalf of each Underwriter: the last paragraph at the bottom of the
prospectus supplement cover page concerning the terms of the offering by the
Underwriters, and the concession and reallowance figures appearing in the
paragraph under the caption "Underwriting" in the prospectus supplement [If
paragraph regarding passive market making is included, insert--and the
information contained in the paragraph under the caption "Underwriting" in the
prospectus supplement] [If applicable, insert--; and (ii) the following
information in the prospectus supplement furnished on behalf of [insert name of
Underwriter]: [insert description of information, such as material relationship
disclosure under the caption "Underwriting" in the prospectus supplement].
-37-
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon
it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
CASE CORPORATION
By:
----------------------------
[Insert title]
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The foregoing Terms Agreement is hereby confirmed and accepted as of the
date first above written.
[If no co-representative, use first confirmation form. If
co-representative, use second.]
[NAMES OF REPRESENTATIVES]
By ____________________________
[Insert title]
[Acting on behalf of itself and as the Representative of the several
Underwriters.]
-39-
SCHEDULE A
Principal
Underwriter Amount
----------- ---------
$
-----------
Total............................................................ $
===========
-40-
