Exhibit 1
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CASE CORPORATION
(a Delaware corporation)
$300,000,000
6.25% Notes due December 1, 2003
PURCHASE AGREEMENT
Dated: December 2, 1998
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TABLE OF CONTENTS
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SECTION 1. Representations and Warranties by the Company.................. 3
(a) Representations and Warranties................................. 3
(i) Similar Offerings..................................... 3
(ii) Offering Memorandum................................... 3
(iii) Incorporated Documents................................ 3
(iv) Financial Statements.................................. 4
(v) Due Incorporation and Good Standing of the Company.... 4
(vi) Due Incorporation and Good Standing of Subsidiaries... 5
(vii) Authorization of the Indenture and the Securities..... 5
(viii) Authorization of the Exchange Notes................... 6
(ix) Authorization of the Registration Rights Agreement.... 6
(x) No Consents, Approvals, Etc........................... 6
(xi) Absence of Defaults and Conflicts..................... 6
(xii) Authorization of this Agreement....................... 7
(xiii) Licenses and Permits.................................. 7
(xiv) Environmental Laws.................................... 7
(xv) Absence of Proceedings................................ 8
(xvi) Absence of Material Adverse Effect.................... 8
(xvii) Investment Company Status............................. 9
(xviii) Absence of Labor Disturbance.......................... 9
(xix) Rule 144A Eligibility................................. 9
(xx) No General Solicitation............................... 9
(xxi) No Registration Required.............................. 9
(xxii) No Directed Selling Efforts........................... 9
(xxiii) No Agreement for Filing a Registration Statement...... 10
(xxiv) Compliance with Rule 144A............................. 10
(xxv) Reporting Company..................................... 10
(b) Officer's Certificates......................................... 10
SECTION 2. Sale and Delivery to Initial Purchasers; Closing............... 10
(a) Securities..................................................... 10
(b) Payment........................................................ 10
(c) Qualified Institutional Buyer.................................. 11
(d) Denominations; Registration.................................... 11
SECTION 3. Covenants of the Company....................................... 11
(a) Offering Memorandum............................................ 11
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(b) Notice and Effect of Material Events........................... 11
(c) Amendment to Offering Memorandum and Supplements............... 12
(d) Qualification of Securities for Offer and Sale................. 12
(e) Rating of Securities........................................... 12
(f) DTC............................................................ 13
(g) Use of Proceeds................................................ 13
(h) Restriction of Sale of Securities.............................. 13
SECTION 4. Payment of Expenses............................................ 13
(a) Expenses....................................................... 13
(b) Termination of Agreement....................................... 14
SECTION 5. Conditions of Initial Purchasers' Obligations.................. 14
(a) Accountants' Comfort Letter.................................... 14
(b) Absence of Certain Changes..................................... 14
(c) Opinion of Special Counsel for Company......................... 15
(d) Opinion of General Counsel for the Company..................... 17
(e) Opinion of Counsel for Initial Purchasers...................... 18
(f) Officers' Certificate.......................................... 18
(g) Bring-Down Comfort Letter...................................... 19
(h) Additional Documents........................................... 19
(i) Termination of Agreement....................................... 19
SECTION 6. Subsequent Offers and Resales of the Securities................ 19
(a) Offer and Sale Procedures...................................... 19
(i) Offers and Sales only to Institutional Accredited
Investors or Qualified Institutional Buyers........... 19
(ii) No General Solicitation............................... 20
(iii) Purchases by Non-Bank Fiduciaries..................... 20
(iv) Subsequent Purchaser Notification..................... 20
(v) Minimum Principal Amount.............................. 20
(vi) Restrictions on Transfer.............................. 21
(vii) Delivery of Offering Memorandum....................... 21
(b) Covenants of the Company....................................... 21
(i) Integration........................................... 21
(ii) Rule 144A Information................................. 21
(iii) Restriction on Repurchases............................ 21
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A....... 22
(d) Representations and Warranties of Initial Purchasers........... 22
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SECTION 7. Indemnification................................................ 24
(a) Indemnification of Initial Purchasers.......................... 24
(b) Indemnification of Company..................................... 25
(c) Actions against Parties; Notification.......................... 25
(d) Settlement without Consent if Failure to Reimburse............. 26
SECTION 8. Contribution................................................... 26
SECTION 9. Representations, Warranties and Agreements to Survive Delivery. 28
SECTION 10. Default by One or More of the Initial Purchasers............... 28
SECTION 11. Notices........................................................ 29
SECTION 12. Parties........................................................ 29
SECTION 13. GOVERNING LAW AND TIME......................................... 29
SECTION 14. Effect of Heading.............................................. 29
SCHEDULES
Schedule A - List of Initial Purchasers
Schedule B - Pricing Information
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CASE CORPORATION
(a Delaware corporation)
$300,000,000
6.25% Notes due December 1, 2003
PURCHASE AGREEMENT
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December 2, 1998
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES LLC
XXXXXXX XXXXX BARNEY INC.
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Case Corporation, a Delaware corporation (the "Company"), confirms its
agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and each of the other Initial Purchasers named in
Schedule A hereto (collectively, the "Initial Purchasers," which term shall also
include any initial purchaser substituted as hereinafter provided in Section 11
hereof), for whom Xxxxxxx Xxxxx is acting as representative (in such capacity,
the "Representative"), with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $300,000,000
aggregate principal amount of the Company's 6.25% Notes due December 1, 2003
(the "Securities"). The Securities are to be issued pursuant to an Indenture
dated as of July 31, 1995 (the "Indenture") between the Company and The Bank of
New York, as trustee (the "Trustee"). The Securities and the Exchange Notes (as
defined below) issuable in exchange therefor are collectively referred to herein
as the "Notes." Notes issued in book-entry form will be issued to Cede & Co. as
nominee of The Depository Trust Company ("DTC") pursuant to a letter agreement,
to be dated as of the Closing Time (as defined in Section 2(b)) (the "DTC
Agreement"), among the Company, the Trustee and DTC.
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The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after the date of this Agreement. The Securities are to
be offered and sold through the Initial Purchasers without being registered
under the Securities Act of 1933, as amended (the "1933 Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Securities and the Indenture,
investors that acquire Securities may only resell or otherwise transfer such
Securities if such Securities are hereafter registered under the 1933 Act or if
an exemption from the registration requirements of the 1933 Act is available
(including the exemption afforded by Rule 144A ("Rule 144A") or Regulation S
("Regulation S") of the rules and regulations promulgated under the 1933 Act by
the Securities and Exchange Commission (the "Commission")).
Holders (including subsequent transferees) of the Securities will have
the registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement") to be dated as of the Closing Time among the
Company and the Initial Purchasers and for so long as such Securities constitute
"Registrable Securities" (as defined in such agreement). Pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Commission, under the circumstances set forth therein, (i) a registration
statement under the 1933 Act (the "Exchange Offer Registration Statement")
relating to the Company's 6.25% Series B Notes due December 1, 2003 (the
"Exchange Notes"), to be offered in exchange for the Securities (such offer to
exchange being referred to as the "Exchange Offer") and (ii) a shelf
registration statement pursuant to Rule 415 under the 1933 Act (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, the "Notes Registration Statements") relating to the resale by
certain holders of the Securities and to use its reasonable efforts to cause
such Notes Registration Statements to be declared and remain effective and
usable for the periods specified in the Registration Rights Agreement and to
consummate the Exchange Offer.
The Company has prepared and will deliver to each Initial Purchaser,
on the date hereof or the next succeeding day, copies of a final offering
memorandum dated December 2, 1998 (the "Final Offering Memorandum"), for use by
such Initial Purchasers in connection with their solicitation of purchases of,
or offering of, the Securities. "Offering Memorandum" means, with respect to any
date or time referred to in this Agreement, the most recent offering memorandum
(whether the Final Offering Memorandum, or any amendment or supplement to such
document), including exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the Company to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Securities.
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All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
SECTION 1. Representations and Warranties by the Company.
(a) Representations and Warranties. The Company represents and
warrants to each Initial Purchaser as of the date hereof and as of the Closing
Time referred to in Section 2(b) hereof, and agrees with each Initial Purchaser,
as follows:
(i) Similar Offerings. Neither the Company nor any of its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
(each, an "Affiliate"), has, directly or indirectly, solicited any offer to
buy, sold or offered to sell or otherwise negotiated in respect of, or will
solicit any offer to buy or offer to sell or otherwise negotiate in respect
of, in the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the Securities in
a manner that would require the Securities to be registered under the 1933
Act.
(ii) Offering Memorandum. The Offering Memorandum does not, and
at the Closing Time will not, include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty and
agreement shall not apply to statements in or omissions from the Offering
Memorandum made in reliance upon and in conformity with information
furnished to the Company in writing by any Initial Purchaser through the
Representative expressly for use in the Offering Memorandum.
(iii) Incorporated Documents. The Offering Memorandum as
delivered from time to time shall incorporate by reference the most recent
Annual Report of the Company on Form 10-K filed with the Commission and
each Quarterly Report of the Company on Form 10-Q and each Current Report
of the Company on Form 8-K filed with the Commission since the end of the
fiscal year to which such Annual Report relates. The documents incorporated
or deemed to be incorporated by reference in the Offering Memorandum at the
time they were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder
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(the "1934 Act Regulations") and, when read together with the other
information in the Offering Memorandum, at the date of the Offering
Memorandum and at the Closing Time, do not and will not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iv) Financial Statements. The audited consolidated financial
statements of the Company and related schedules, if any, and notes included
or incorporated by reference in the Offering Memorandum comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
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 Offering Memorandum 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 Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included or incorporated by reference in the Offering Memorandum
under the caption "Ratio of Earnings to Fixed Charges" have been calculated
in compliance with Item 503(d) of Regulation S-K of the Commission.
(v) Due Incorporation and Good Standing of the Company. 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 Offering Memorandum; 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 con-
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solidated subsidiaries (as defined in Rule 1-02(x) of the Commission's
Regulation S-X), taken as a whole (a "Material Adverse Effect").
(vi) Due Incorporation and Good Standing of Subsidiaries. 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
Offering Memorandum 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.
(vii) Authorization of the Indenture and the Securities. 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
of 1939, as amended (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 Securities have been duly authorized
by the Company; and when the Securities are delivered and paid for pursuant
to this Agreement at the Closing Time, such 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 Offering Memorandum, and such 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
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. At the Closing Time, the
Indenture and the Securities will be in substantially the respective forms
previously delivered to the Initial Purchasers.
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(viii) Authorization of the Exchange Notes. The Exchange Notes
have been duly authorized by the Company. When the Exchange Notes are
issued, executed and authenticated in the manner provided for by the terms
of the Exchange Offer and the Indenture, the Exchange Notes 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 Offering Memorandum and such Exchange Notes 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
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 equitable principles.
(ix) Authorization of the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the
Company and will constitute the valid and legally binding obligation of the
Company in accordance with its terms, subject, (i) as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting enforcement
of creditors' rights, to public policy considerations and to general
equitable principles, and (ii) as to enforcement of rights to
indemnification and contribution thereunder, to federal or state securities
laws or regulations or the public policy underlying such laws or
regulations. At the Closing Time, the Registration Rights Agreement will
conform in all material respects to the description thereof contained in
the Offering Memorandum and will be in substantially the form previously
delivered to the Initial Purchasers.
(x) No Consents, Approvals, Etc. 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 this Agreement and the Registration Rights Agreement
(including, without limitation, the execution, delivery and performance of
this Agreement, the Indenture, the Securities, the Exchange Notes and the
Registration Rights Agreement) in connection with the issuance and sale of
the Securities by the Company pursuant to this Agreement and the issuance
and exchange by the Company of the Exchange Notes pursuant to the Exchange
Offer, except such as are required under the 1933 Act and the Trust
Indenture Act in respect of the Exchange Offer and such as may be required
under state securities laws.
(xi) Absence of Defaults and Conflicts. The execution, delivery
and performance of the Indenture, this Agreement and the Registration
Rights Agreement
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and the issuance and sale of the Securities and the issuance and exchange
of the Exchange Notes and compliance with the terms and provisions hereof
and 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, 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.
(xii) Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(xiii) Licenses and Permits. 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 Offering Memorandum, 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.
(xiv) Environmental Laws. Except as set forth in the Offering
Memorandum, 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
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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 Offering Memorandum, there are no
past, present or reasonably anticipated future events, conditions,
circumstances, activities, practices, incidents, actions or plans of the
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.
(xv) Absence of Proceedings. Except as set forth in the Offering
Memorandum, 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
Registration Rights Agreement, the Securities or the Exchange Notes; and,
to the best knowledge of the Company, except as set forth in the Offering
Memorandum, no such actions, suits, proceedings or investigations are
threatened.
(xvi) Absence of Material Adverse Effect. Since the date of the
latest audited financial statements of the Company included or incorporated
by reference in the Offering Memorandum, except as disclosed in or
contemplated by the Offering Memorandum: (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.
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(xvii) Investment Company Status. The Company is not and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Offering
Memorandum, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(xviii) Absence of Labor Disturbance. Except as set forth in the
Offering Memorandum, 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.
(xix) Rule 144A Eligibility. The Securities are eligible for
resale pursuant to Rule 144A and will not be, at the Closing Time, of the
same class as securities listed on a national securities exchange
registered under Section 6 of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(xx) No General Solicitation. None of the Company, its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
("Affiliates"), or any person acting on its or any of their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xxi) No Registration Required. Assuming (i) the accuracy of the
representations and warranties of the Initial Purchasers set forth in
Section 2(c) hereof and compliance by the Initial Purchasers with the
provisions of Sections 6(a) and 6(c) hereof and (ii) the accuracy of the
representations made by each Subsequent Purchaser of the Securities under
Regulation S of the 1933 Act, as to such Subsequent Purchaser not being a
"U.S. Person," within the meaning of Rule 902 of Regulation S of the 1933
Act, it is not necessary in connection with the offer, sale and delivery of
the Securities to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering Memorandum to
register the Securities under the 1933 Act.
(xxii) No Directed Selling Efforts. With respect to those Securities
sold in reliance on Regulation S, (A) none of the Company, its Affiliates
or any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged or
will engage in any directed selling efforts within the meaning of
Regulation S and (B) each of the Company and its Affiliates and any person
acting on its or their behalf (other than the Initial Purchasers,
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as to whom the Company makes no representation) has complied and will
comply with the offering restrictions requirement of Regulation S.
(xxiii) No Agreement for Filing a Registration Statement. There are
no persons with registration rights or other similar rights to have any
debt securities registered pursuant to any registration statement or
otherwise registered by the Company under the 1933 Act, except persons
having such rights pursuant to the Registration Rights Agreement.
(xxiv) Compliance with Rule 144A. The Final Offering Memorandum,
as of its date, contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the 1933 Act.
(xxv) Reporting Company. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the 1934 Act.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Initial Purchasers shall be deemed a representation and warranty
by the Company to each Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Initial Purchaser, severally and not jointly, and
each Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities which such Initial Purchaser
may become obligated to purchase pursuant to the provisions of Section 11
hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of Xxxxx, Xxxxx &
Xxxxx, 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as
shall be agreed upon by the Representative and the Company, at 9:00 A.M.
(eastern standard time) on the 3rd business day after the date hereof (unless
postponed in accordance with the provisions of Section 11), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
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Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Initial Purchasers of
certificates for the Securities to be purchased by them. It is understood that
each Initial Purchaser has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not
as representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally
and not jointly represents and warrants to, and agrees with, the Company that it
is a "qualified institutional buyer" within the meaning of Rule 144A under the
1933 Act (a "Qualified Institutional Buyer") and an "accredited investor" within
the meaning of Rule 501(a) under the 1933 Act (an "Accredited Investor").
(d) Denominations; Registration. Certificates for the Securities
shall be in such denominations (with minimum denominations of $100,000 and
integral multiples of $1,000 thereof) and registered in such names as the
Representative may request in writing at least two full business day before the
Closing Time. One or more Securities in definitive global form, registered in
the name of Cede & Co., as nominee of DTC, having an aggregate amount
corresponding to the aggregate amount of the Securities sold to Subsequent
Purchasers (collectively, the "Global Note"), shall be delivered by the Company
to the Initial Purchasers (or as the Initial Purchasers direct) in each case
with any transfer taxes thereon duly paid by the Company, against payment by the
Initial Purchasers of the purchase price therefor in accordance with this
Section 2. The Global Note shall be made available for examination by the
Initial Purchasers in The City of New York not later than 10:00 A.M. on the
business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possibly, will
furnish to each Initial Purchaser, without charge, such number of copies of the
Offering Memorandum and any amendments and supplements thereto and documents
incorporated by reference therein as such Initial Purchaser may reasonably
request.
(b) Notice and Effect of Material Events. The Company will promptly
notify each Initial Purchaser, and confirm such notice in writing, of (x) any
filing made by the Company of information relating to the offering of the
Securities with any securities ex-
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change or any other regulatory body in the United States or any other
jurisdiction, and (y) prior to the completion of the placement of the Securities
by the Initial Purchasers as evidenced by a notice in writing from the Initial
Purchasers to the Company, any event shall occur as a result of which it is
necessary, in the reasonable opinion of any of the Company, its counsel, the
Initial Purchasers or counsel for the Initial Purchasers, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances then existing, or if, in the opinion of the Company, its counsel,
the Initial Purchasers or counsel for the Initial Purchasers, such amendment or
supplement is necessary to comply with applicable law, the Company will
forthwith amend or supplement the Offering Memorandum by preparing and
furnishing to each Initial Purchaser an amendment or amendments of, or a
supplement or supplements to, the Offering Memorandum (in form and substance
satisfactory in the reasonable opinion of counsel for the Initial Purchasers) so
that, as so amended or supplemented, the Offering Memorandum will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a Subsequent Purchaser, not misleading,
or so that the Offering Memorandum, as so amended or supplemented, shall comply
with applicable law, as the case may be.
(c) Amendment to Offering Memorandum and Supplements. The Company
will advise each Initial Purchaser promptly of any proposal to amend or
supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers, which consent will not
be unreasonably withheld or delayed, unless in the opinion of counsel for the
Company such amendment or supplement is required by law. Neither the consent of
the Initial Purchasers, nor the Initial Purchasers' delivery of any such
amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) Qualification of Securities for Offer and Sale. The Company will
use its reasonable best efforts, in cooperation with the Initial Purchasers, to
qualify the Securities for offering and sale under the applicable securities
laws of such jurisdictions as the Representative may reasonably designate and
will maintain such qualifications in effect as long as required for the sale of
the Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
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("S&P"), and Xxxxx'x Investors Service Inc. ("Moody's") to provide their
respective credit ratings of the Securities.
(f) DTC. The Company will cooperate with the Representative and use
its best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds."
(h) Restriction of Sale of Securities. During a period of seven (7)
business days from the date of the Offering Memorandum, the Company will not,
without the prior written consent of the Representative, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any other dollar denominated debt securities issued by the
Company and having a maturity of more than one year from the date of issue or
securities of the Company that are convertible into, or exchangeable for, the
Securities or such other debt securities (other than (i) the Exchange Notes,
(ii) any debt securities convertible into, or exchangeable for, equity
securities of the Company and (iii) any debt securities of another entity
acquired by the Company or assumed by the Company in connection with an
acquisition of the assets of such entity, which debt securities were (a)
existing prior to such acquisition and (b) not issued in connection with, or in
contemplation of, such acquisition).
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Offering Memorandum (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to the Initial Purchasers of this Agreement,
any Agreement among Initial Purchasers, the Indenture and such other documents
as may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Initial Purchasers, including any charges
of DTC in connection therewith, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Initial Purchasers in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in
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connection with the Indenture and the Securities, and (vii) any fees payable in
connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 hereof (other than
pursuant to clauses (iii), (iv) or (v) of Section 5(b)), the Company shall
reimburse the Initial Purchasers for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions.
(a) Accountants' Comfort Letter. On or prior to the date of this
Agreement, the Representative shall have received a letter, dated the date of
delivery thereof, of Xxxxxx Xxxxxxxx LLP in form and substance satisfactory to
the Representative, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(b) Absence of Certain Changes. Subsequent to the execution of this
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 Initial Purchasers including the Representative,
materially impairs the investment quality of the 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 1933 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 Initial Purchasers including the Representative, the
effect of any such out-
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break, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Securities.
(c) Opinion of Special Counsel for Company. At the Closing Time, the
Representative shall have received the signed opinion, dated as of the Closing
Time, of Xxxxx, Xxxxx & Xxxxx, special counsel for the Company, or other counsel
for the Company reasonably satisfactory to the Representative, 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 Offering
Memorandum; and the Company is duly qualified 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 and the Registration Rights Agreement have each
been duly authorized, executed and delivered by the Company, the Indenture
has been duly qualified under the 1939 Act and the Indenture and the
Registration Rights Agreement (assuming the due authorization, execution
and delivery thereof by the Initial Purchasers) constitute valid and
legally binding obligations of the Company enforceable against the Company
in accordance with their respective terms, subject, (i) 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 and (ii) as to enforceability of rights to
indemnification and contribution thereunder, to limitations imposed by
federal or state securities laws or regulations or the public policy
underlying such laws or regulations; the Indenture complies as to form in
all material respects with the requirements of the 1939 Act; the Securities
have been duly authorized by the Company; the Securities have been duly
executed, authenticated and delivered by the Company; the Securities
constitute, and any Exchange Notes, when executed, authenticated, issued
and delivered in the manner provided in the Indenture and, with respect to
the Exchange Notes, exchanged as described in the Offering Memorandum
pursuant to the Exchange Offer, will constitute, valid and legally binding
obligations of the Company enforceable against the Company in accordance
with their respective 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; and the
Securities conform, and any Exchange Notes, when so issued and delivered
and exchanged, will conform, in all
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material respects to the respective descriptions thereof contained in the
Offering Memorandum;
(iii) 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 this Agreement in
connection with the issuance or sale by the Company of the Securities or
the issuance or exchange of the Exchange Notes by the Company pursuant to
the Exchange Offer, except such as are required and have been obtained and
made under the 1939 Act and, in connection with the issuance and exchange
of the Exchange Notes pursuant to the Exchange Offer, under the 1933 Act
and the 1939 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 Indenture and the Registration Rights
Agreement);
(iv) the execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement and the issuance and sale
by the Company of the Securities and the issuance and exchange by the
Company of the Exchange Notes pursuant to the Exchange Offer 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 Securities as contemplated by
this Agreement and to authorize, issue and exchange the Exchange Notes as
contemplated by the Registration Rights Agreement;
(v) such counsel has no reason to believe that the Offering
Memorandum, as of its date or as of the Closing Time, or any amendment or
supplement thereto, as of its date or as of the Closing Time, 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
Offering Memorandum;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
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(vii) each document filed pursuant to the 1934 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 Offering
Memorandum complied as to form in all material respects with the applicable
requirements of the 1934 Act when so filed; and
(viii) assuming (a) that the representations and warranties of the
Initial Purchasers contained in Section 2(c) of this Agreement are true,
correct and complete, (b) compliance by the Company and the Initial
Purchasers with their covenants in Section 6 hereof and (c) the accuracy of
the representations and warranties deemed made by each purchaser of the
Securities in accordance with the Offering Memorandum, it is not necessary
in connection with the offer, sale and delivery of the Securities to the
Initial Purchasers under, or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with, this Agreement to
register the Securities under the 1933 Act.
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
Representative on or prior to the Closing Time.
(d) Opinion of General Counsel for the Company. The Representative
shall have received the signed opinion, dated as of the Closing Time, of Xxxxxxx
X. Xxxxxxx, General Counsel 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 this Agreement in connection with the issuance
or sale by the Company of the Securities and the issuance and exchange by
the Company of the Exchange Notes, 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 or such as may be required under the 1933 Act and the
1939 Act in connection with the performance of the Registration Rights
Agreement;
(ii) the execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement and the issuance and sale
by the Company of the Securities and the issuance and exchange by the
Company of the Exchange Notes 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
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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 Offering Memorandum, 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 Offering
Memorandum, as of its date or as of the Closing Time, or any amendment or
supplement thereto, as of its date or as of the Closing Time, 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 Offering Memorandum.
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 Time.
(e) Opinion of Counsel for Initial Purchasers. At the Closing Time,
the Representative shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to the incorporation of the Company and the
matters set forth in clauses (ii) (assuming the due authorization, execution and
delivery of each of the Indenture and the Registration Rights Agreement by each
party thereto), (v), (vi) and (viii) of subsection (c) of this Section 5. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(f) Officers' Certificate. The Initial Purchasers shall have received
a certificate or certificates, dated the Closing Time, of the President or any
Vice President and a
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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 Time, that, subsequent to the date of the most recent financial
statements in the Offering Memorandum, 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
Offering Memorandum or as described in such certificate and reasonably
acceptable to the Representative.
(g) Bring-Down Comfort Letter. The Initial Purchasers shall have
received a letter, dated the Closing Time, of Xxxxxx Xxxxxxxx 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
Time for the purposes of this subsection.
(h) Additional Documents. At the Closing Time, counsel for the
Initial Purchasers shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated.
(i) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representative by notice to the Company
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 7, 8 and 9 shall survive any such termination and
remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Company hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) Offers and Sales only to Institutional Accredited Investors or
Qualified Institutional Buyers. Offers and sales of the Securities shall
only be made (A) to persons whom the offeror or seller reasonably believes
to be qualified institutional buyers (as defined in Rule 000X xxxxx xxx
0000 Xxx), (X) to a limited number of other institutional accredited
investors (as such term is defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D) that the offeror or seller reasonably believes to be
-20-
and, with respect to sales and deliveries, that are Accredited Investors
("Institutional Accredited Investors"), (C) to non-U.S. persons outside the
United States, as defined in Regulation S under the 1933 Act, to whom the
offeror or seller reasonably believes offers and sales of the Securities
may be made in reliance upon Regulation S under the 1933 Act. Each Initial
Purchaser severally agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 0000 Xxx) will be
used in the United States in connection with the offering or sale of the
Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or more
third parties, each third party shall, in the judgment of the applicable
Initial Purchaser, be an Institutional Accredited Investor or a Qualified
Institutional Buyer or a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States
that the Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933
Act in reliance on Rule 144A or in accordance with another exemption from
registration under the 1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1) to the Company, (2)
outside the United States in accordance with Regulation S, or (3) inside
the United States in accordance with (x) Rule 144A to a person whom the
seller reasonably believes is a Qualified Institutional Buyer that is
purchasing such Securities for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any one
Subsequent Purchaser will be for less than U.S. $100,000 principal amount
and no Security will be issued in a smaller principal amount. If the
Subsequent Purchaser is a non-bank fiduciary acting on behalf of others,
each person for whom it is acting must purchase at least U.S. $100,000
principal amount of the Securities.
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(vi) Restrictions on Transfer. The transfer restrictions and the
other provisions set forth in the Offering Memorandum under the heading
"Notice to Investors," including the legend required thereby, shall apply
to the Securities except as otherwise agreed by the Company and the Initial
Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company. The Company covenants with each
Initial Purchaser as follows:
(i) Integration. The Company agrees that it will not and will
cause its Affiliates not to solicit any offer to buy or make any offer or
sale of, or otherwise negotiate in respect of, securities of the Company of
any class if, as a result of the doctrine of "integration" referred to in
Rule 502 under the 1933 Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Securities by the Company to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by Rule
144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Company agrees that, in order
to render the Securities eligible for resale pursuant to Rule 144A under
the 1933 Act, while any of the Securities remain outstanding, it will make
available, upon request, to any holder of Securities or prospective
purchasers of Securities the information specified in Rule 144A(d)(4),
unless the Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the 1934 Act (such information, whether made
available to holders or prospective purchasers or furnished to the
Commission, is herein referred to as "Additional Information").
(iii) Restriction on Repurchases. Until the expiration of two
years after the original issuance of the Securities, the Company will not,
and will cause its Affiliates not to, purchase or agree to purchase or
otherwise acquire any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 1933 Act), whether as
beneficial owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the ordinary course
of business in unsolicited broker's transactions) unless, immediately upon
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any such purchase, the Company or any Affiliate shall submit such
Securities to the Trustee for cancellation.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
Initial Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
its distribution at any time and (ii) otherwise until forty days after the later
of the date upon which the offering of the Securities commences and the Closing
Time, only in accordance with Rule 903 of Regulation S, or another applicable
exemption from the registration provisions of the 1933 Act or Rule 144A under
the 1933 Act. Accordingly, neither the Initial Purchasers, their affiliates nor
any persons acting on their behalf have engaged or will engage in any directed
selling efforts with respect to Securities, and the Initial Purchasers, their
affiliates and any person acting on their behalf have complied and will comply
with the offering restriction requirements of Regulation S. Each Initial
Purchaser severally agrees that, at or prior to confirmation of a sale of
Securities (other than a sale of Securities pursuant to Rule 144A) it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it or through it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to or for the account or benefit of
U.S. persons (i) as part of their distribution at any time and (ii)
otherwise until forty days after the later of the date upon which the
offering of the Securities commenced and the date of closing, except in
either case in accordance with Regulation S, Rule 144A under the Securities
Act or another exemption from the registration requirements of the 1933
Act. Terms used above have the meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
(d) Representations and Warranties of Initial Purchasers. Each
Initial Purchaser severally represents and agrees that it has not entered and
will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
In addition, each Initial Purchaser severally represents and agrees
that:
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(i) except to the extent permitted under U.S. Treas. Reg. (S) 1.163-
5(c)(2)(i)(D) (the "D Rules"), (x) it has not offered or sold, and during
the restricted period will not offer or sell, Securities in bearer form to
a person who is within the United States or its possessions or to a United
States person, and (y) such Initial Purchaser has not delivered and will
not deliver within the United States or its possessions definitive
Securities in bearer form that are sold during the restricted period;
(ii) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Securities in bearer form are
aware that such Securities may not be offered or sold during the restricted
period to a person who is within the United States or its possessions or to
a United States person, except as permitted by the D Rules;
(iii) if such Initial Purchaser is a United States person, it
represents that it is acquiring the Securities in bearer form for purposes
of resale in connection with their original issuance and, if such Initial
Purchaser retains Securities in bearer form for its own account, it will
only do so in accordance with the requirements of U.S. Treas. Reg. (S)
1.163-5(c)(2)(i)(D)(6); and
(iv) with respect to each affiliate (if any) that acquires from such
Initial Purchaser Securities in bearer form for the purposes of offering or
selling such Notes during the, restricted period, such Initial Purchaser
either (A) hereby severally represents and agrees on behalf of such
affiliate (if any) to the effect set forth in sub-paragraphs (i), (ii) and
(iii) of this paragraph or (B) severally agrees that it will obtain from
such affiliate (if any) for the benefit of the Company the representations
and agreements contained in sub-paragraphs (i), (ii) and (iii) of this
paragraph.
Terms used in the above paragraph have the meanings given to them by the United
States Internal Revenue Code and Regulations thereunder, including the D Rules.
In addition, under U.S. Treas. Reg. (S)1.163-5(c)(2)(i)(C) (the "C
Rules"), Securities in bearer form must be issued and delivered outside the
United States and its possessions in connection with their original issuance.
Each Initial Purchaser severally represents and agrees that it has not offered,
sold or delivered, and will not offer, sell or deliver, directly or indirectly,
Securities in bearer form within the United States or its possessions in
connection with the original issuance. Further, each Initial Purchaser severally
represents and agrees in connection with the original issuance of Securities in
bearer form, it has not communicated, and will not communicate, directly or
indirectly, with a prospective purchaser if such purchaser is within the United
States or its possessions and will not otherwise
-24-
involve its U.S. office in the offer or sale of Instruments in bearer form.
Terms used in this paragraph have the meanings given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the C Rules.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 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 Offering
Memorandum (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 any 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, or any such
alleged untrue statement or omission; provided that (subject to Section
7(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 sixth sentence of Section 7(c), the fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred 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 statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any 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
Initial Purchaser through the Representative expressly for use in the Offering
Memorandum (or any amendment or supplement thereto) provided, further, that this
indemnity agreement shall not inure to the benefit of any Initial Purchaser (or
any controlling person thereof) who failed to deliver an Offering Memoran-
-25-
dum (as then amended or supplemented) on or prior to the Closing Time to the
person asserting any loss, claim, damage or expense caused by any misstatement
or omission or alleged misstatement or omission, if such misstatement or
omission or alleged misstatement or omission was cured in such Offering
Memorandum (as so amended or supplemented), so long as the Offering Memorandum
(as so amended or supplemented) was provided by the Company to such Initial
Purchaser on or prior to the Closing Time.
(b) Indemnification of Company. Each Initial Purchaser severally
agrees to indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Offering Memorandum (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Initial Purchaser through the
Representative expressly for use in the Offering Memorandum (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event 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 7(a)
above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx,
and, in the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate 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.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying parties be liable for fees and expenses of
-26-
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), 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 7 or Section 8 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. 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 7(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 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for in
Section 7 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 Initial Purchasers on the other hand from the
offering of the 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
-27-
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Initial Purchasers 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
Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total discount received by the Initial Purchasers, bear to
the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Initial Purchasers 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 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 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 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased by it and sold by it were offered
exceeds the amount of any damages which such Initial Purchaser 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 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
-28-
For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Initial Purchasers.
SECTION 10. Default by One or More of the Initial Purchasers. If one
or more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
each of the non-defaulting Initial Purchasers shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Notes to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-
defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the
-29-
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Offering Memorandum or in any other documents or
arrangements. As used herein, the term "Initial Purchaser" includes any person
substituted for an Initial Purchaser under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Representative at Xxxxx Xxxxx Xxxxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, attention of: Xxxxxx Xxxx; notices to the
Company shall be directed to it at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000,
Attention: Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation. other than the
Initial Purchasers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. ALL
REFERENCES TO TIME HEREIN ARE TO EASTERN STANDARD TIME.
SECTION 14. Effect of Heading. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
CASE CORPORATION
By: /s/ Xxxxx Xxxx
-------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxx X. Xxxx
------------------------------------
Authorized Signatory
For itself and as Representative of the other Initial Purchasers named in
Schedule A hereto.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
CASE CORPORATION
By:
-------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ ????????????
----------------------------------------
Authorized Signatory
For itself and as Representative of the other Initial Purchasers named in
Schedule A hereto.
SCHEDULE A
Principal Amount
of Securities
Name of Initial Purchaser to be Purchased
------------------------- ----------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $165,000,000
Chase Securities Inc. 33,750,000
Credit Suisse First Boston Corporation 33,750,000
NationsBanc Xxxxxxxxxx Securities LLC 33,750,000
Xxxxxxx Xxxxx Barney Inc. 33,750,000
------------
Total:............. $300,000,000
SCHEDULE B
PRICE INFORMATION
1. The initial offering price to investors of the Securities shall
be 99.626% of the principal amount thereof plus accrued interest, if any, from
the date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 99.026% of the principal amount thereof plus accrued
interest, if any, from the date of issuance.
3. The interest rate on the Securities shall be 6.25% per annum.
