Exhibit 1.2
UNDERWRITING AGREEMENT
June 6, 2002
▇▇▇▇▇▇ Dodge Corporation
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
We (the "MANAGER") are acting on behalf of the underwriters (including
ourselves) named below (such underwriters being herein called the
"UNDERWRITERS"), and we understand that ▇▇▇▇▇▇ Dodge Corporation, a New York
corporation (the "COMPANY"), proposes to issue and sell 2 million shares of its
6-3/4% Mandatory Convertible Preferred Shares (MEDS(SM)), par value $1.00 per
share (the "PREFERRED SHARES"), mandatorily convertible into the Common Shares,
$6.25 par value per share (the "COMMON SHARES"), of the Company (said shares to
be issued and sold by the Company being hereinafter called the "UNDERWRITTEN
SECURITIES"). To the extent there are no additional Underwriters listed below
other than us, the term Managers as used herein shall mean us, as Underwriters,
and the terms Managers and Underwriters shall mean either the singular or plural
as the context requires.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, at a purchase price of $97.00 per
Preferred Share, the number of Underwritten Securities set forth below opposite
their names:
Number of Underwritten
Name Securities to be Purchased
---- --------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. 2,000,000
Total 2,000,000
The Underwriters will pay for the Underwritten Securities by wire
transfer in immediately available funds to the account designated by the
Company, at least one business day prior to the Closing Date against delivery of
the Underwritten Securities. Delivery of the Underwritten Securities shall be
made through the facilities of The Depository Trust Company unless the Manager
shall otherwise instruct. The closing shall take place at the office of Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, New York, New York at 10:00 a.m. (New York time) on
June 12, 2002. The time and date of such payment and delivery are hereinafter
referred to as the "CLOSING DATE."
The Underwritten Securities shall have the terms set forth in the
Prospectus dated August 15, 2001 and the Prospectus Supplement dated June 6,
2002 (the "PROSPECTUS SUPPLEMENT").
All provisions contained in the document entitled ▇▇▇▇▇▇ Dodge
Corporation Underwriting Agreement Standard Provisions (Convertible Preferred
Securities) dated June 6, 2002, a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control and (ii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/: ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Accepted:
▇▇▇▇▇▇ DODGE CORPORATION
By: /s/: ▇▇▇▇▇▇ ▇. Peru
-------------------------
Name: ▇▇▇▇▇▇ ▇. Peru
Title: Senior Vice President
and Chief Financial
Officer
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▇▇▇▇▇▇ DODGE CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(CONVERTIBLE PREFERRED SECURITIES)
June 6, 2002
From time to time, ▇▇▇▇▇▇ Dodge Corporation, a New York corporation
(the "COMPANY"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Terms defined in the Underwriting Agreement are
used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Convertible Preferred Securities and has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically
relating to the Underwritten Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"). The term
"REGISTRATION STATEMENT" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement and any registration
statement relating to the Convertible Preferred Securities filed pursuant to
Rule 462(b) under the Securities Act. The term "BASIC PROSPECTUS" means the
prospectus included in the Registration Statement. The term "PROSPECTUS" means
the Basic Prospectus together with the Prospectus Supplement. The term
"PRELIMINARY PROSPECTUS" means a preliminary prospectus supplement specifically
relating to the Underwritten Securities, together with the Basic Prospectus. As
used herein, the terms "BASIC PROSPECTUS," "PROSPECTUS" and "PRELIMINARY
PROSPECTUS" shall include in each case the documents, if any, incorporated by
reference therein. The terms "SUPPLEMENT" and "AMENDMENT" or "AMEND" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT").
1. Representations and Warranties. The Company represents and warrants
to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) 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 in
all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable,
from the date of its effectiveness through and including the Closing
Date, will not contain, any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented,
if applicable, from the date of effectiveness of the Registration
Statement through and including the Closing Date will comply, in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, from the
date of effectiveness of the Registration Statement through and
including the Closing Date will not contain, any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Manager expressly for use
therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own and lease its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Underwritten Securities have been duly authorized and,
when issued and delivered to the Underwriters against payment therefor
in accordance with the terms of this Agreement, will be validly issued,
fully paid and nonassessable and free of any preemptive or similar
rights; and no holder of any security of the Company has or will have
any right to require the registration of such security by virtue of any
transaction contemplated by this Agreement.
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(g) The Common Shares initially issuable upon conversion of
the Underwritten Securities have been duly authorized and reserved for
issuance out of the Company's authorized and unissued shares of Common
Shares and when issued in accordance with the provisions of the
Underwritten Securities and the Company's Restated Certificate of
Incorporation will be duly and validly issued, fully paid and
non-assessable; and the holders of the outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to
subscribe for the Underwritten Securities or the Common Shares issuable
upon conversion thereof.
(h) The issuance and sale of the Underwritten Securities, the
issuance of Common Shares upon conversion thereof and the performance
by the Company of its obligations under this Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary; and no consent,
approval, authorization or order of or qualification with any
governmental body or agency is required for the issuance and sale of
the Underwritten Securities or the Common Shares or the performance by
the Company of its obligations under this Agreement, except such as
have been obtained under the Securities Act and such as may be required
by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Underwritten Securities.
(i) Prior to the date hereof, the Company has not taken,
directly or indirectly, any action designed to or which has constituted
or which might reasonably be expected to cause or result in a violation
of Regulation M under the Exchange Act.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(l) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of the Underwriting Agreement or the issuance by
the Company or the sale by the Company of the Underwritten Securities.
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(m) The Company is not an "INVESTMENT COMPANY" or an entity
"CONTROLLED" by an "INVESTMENT COMPANY", as such terms are defined in
the Investment Company Act of 1940, as amended.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwritten Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwritten Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided (i) in this
Section 3, payment for the Underwritten Securities shall be made in immediately
available funds at the time and place set forth in the Underwriting Agreement,
upon delivery to the Manager for the respective accounts of the several
Underwriters of the Underwritten Securities, registered in such names and in
such denominations as the Manager shall request prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Underwritten Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the Underwriters
to purchase the Underwritten Securities are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any official notice have been given of any intended
or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities
by ▇▇▇▇▇'▇ Investors Service Inc., Standard & Poor's
Corporation or Fitch Ratings Inc.;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, that, in the
reasonable judgment of the Manager, is material and adverse
and that makes it, in the reasonable judgment of the Manager,
impracticable to market the Underwritten Securities on the
terms and in the manner contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness of
the Registration Statement shall have been issued.
(b) The Manager shall have received on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a) above and to the
effect that the representations and warranties of the Company contained
in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before
the Closing Date.
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The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date, an
opinion of S. ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President and General Counsel
of the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
(d) The Manager shall have received on the Closing Date, an
opinion of Debevoise & ▇▇▇▇▇▇▇▇, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date, an
opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Underwriters, dated the Closing Date, to the effect set forth in
Exhibit C.
(f) The Manager shall have received on the Closing Date, a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from the Company's independent public accountants,
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 or
incorporated by reference into the Prospectus.
(g) On the Closing Date, special counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and
sale of the Underwritten Securities and the issuance of Common Shares
upon conversion thereof as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained.
(h) The Underwritten Securities and the Common Shares issuable
on conversion of the Underwritten Securities shall have been listed and
admitted and authorized for trading on the New York Stock Exchange, and
satisfactory evidence of such actions shall have been provided to the
Manager.
(i) As of the execution and delivery hereof by the parties
hereto (the "EXECUTION TIME"), the Company shall have furnished to the
Manager a letter substantially in the form of Exhibit D hereto from
each officer and director of the Company listed on Annex I hereto
addressed to the Manager.
5. Covenants of the Company. In further consideration of the agreements
of the Underwriters contained herein, the Company covenants as follows:
(a) To furnish the Manager, without charge, a signed copy of
the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Manager may reasonably
request.
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(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Underwritten
Securities, to furnish to the Manager a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which the Manager reasonably objects. The Company will
cause the Prospectus Supplement to be filed with the Commission
pursuant to Rule 424 under the Securities Act.
(c) If, during such period after the first date of the public
offering of the Underwritten Securities as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the
Underwriters, and to the dealers (whose names and addresses the Manager
will furnish to the Company) to which Underwritten Securities may have
been sold by the Manager on behalf of the Underwriters and to any other
dealer upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus, as
so amended or supplemented, will comply with law.
(d) To endeavor to qualify the Underwritten Securities and the
Common Shares issuable on conversion thereof for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with (i) the determination of the eligibility of the
Underwritten Securities for investment under the laws of such
jurisdictions as the Manager may designate and (ii) any review of the
offering of the Underwritten Securities by the National Association of
Securities Dealers, Inc.; provided, however, the Company shall not be
obligated to qualify as a foreign corporation or file any general
consent to service of process under the laws of any such jurisdiction
or subject itself to taxation as doing business in any such
jurisdiction.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder, including Rule 158 thereunder.
(f) To reserve and keep available at all times, free of
preemptive rights, the full number of Common Shares issuable upon
conversion of the Underwritten Securities.
(g) To not, without the prior written consent of ▇.▇. ▇▇▇▇▇▇
Securities Inc., offer, sell, contract to sell, pledge, or otherwise
dispose of (or enter into any transaction which
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is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any other
Common Shares or any securities convertible into, or exercisable, or
exchangeable for, Common Shares, or publicly announce an intention to
effect any such transaction, until 90 days after the date of the
Underwriting Agreement, provided, however, that the Company may issue
and sell Common Shares (i) pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in
effect at the Execution Time and the Company may issue Common Shares
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time and (ii) upon conversion of the
Underwritten Securities.
(h) To pay all document production charges and expenses of
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the Underwriters
(but not including their fees for professional services), in connection
with the preparation of this Agreement.
(i) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result in a violation of Regulation M under the
Exchange Act.
(j) The Company will file with the Secretary of State of the
State of New York a Certificate of Amendment to the Company's Restated
Certificate of Incorporation setting forth the designation, rights,
relative preferences, limitations and terms of the Underwritten
Securities.
6. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Manager expressly for use
therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or
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Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company by such Underwriter in
writing through the Manager expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing; provided that the
failure to so notify the indemnifying party will not relieve the indemnifying
party from any liability under the two preceding paragraphs to the extent the
indemnifying party is not materially prejudiced as a result thereof. The
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to the second preceding paragraph, and by the Company, in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph in
this Section 6 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or
8
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (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
Underwritten Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, 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
Underwritten Securities shall be deemed to be in the same respective proportions
as the net proceeds from the offering of such Underwritten Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover of the Prospectus Supplement, bear to the aggregate public
offering price of the Underwritten Securities. The relative fault of the Company
on the one hand and of 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. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective principal amounts of Underwritten Securities purchased by each
of such Underwriters and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation
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made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) acceptance of and payment for any of
the Underwritten Securities.
7. Termination. This Agreement shall be subject to termination, by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the delivery of and payment
for the Underwritten Securities (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the reasonable
judgment of the Manager, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the reasonable judgment of the
Manager, impracticable to market the Underwritten Securities on the terms and in
the manner contemplated in the Prospectus.
8. Defaulting Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase Underwritten Securities that it has or they
have agreed to purchase hereunder on such date, and the aggregate amount of
Underwritten Securities which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
amount of the Underwritten Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the amount of
Underwritten Securities set forth opposite their respective names in the
Underwriting Agreement bears to the aggregate amount of Underwritten Securities
set forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Underwritten
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the amount
of Underwritten Securities that any Underwriter has agreed to purchase pursuant
to this Agreement be increased pursuant to this Section 8 by an amount in excess
of one-ninth of the amount of Underwritten Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Underwritten Securities and the
aggregate amount of Underwritten Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Underwritten Securities
to be purchased on such date, and arrangements satisfactory to the Manager and
the Company for the purchase of such Underwritten Securities are not made within
36 hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to postpone the Closing
Date but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Underwritten Securities.
9. Miscellaneous. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Manager, will be mailed,
delivered or telefaxed to the ▇.▇. ▇▇▇▇▇▇ Securities Inc. Syndicate Desk (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the Syndicate Desk, ▇.▇. ▇▇▇▇▇▇ Securities
Inc., at ▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or, if sent to the Company,
will be mailed, delivered or telefaxed to ______________ and confirmed to it at
___________, attention of the Legal Department.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
[Remainder of Page Intentionally Left Blank]
11
Exhibit A
Opinion of General Counsel
for the Company
The opinion of General Counsel for the Company, to be delivered
pursuant to Section 4(c) of the Underwriting Agreement shall be to the effect
that:
1. The statements (1) in "ITEM 3 - LEGAL PROCEEDINGS" of the Company's
most recent annual report on Form 10-K incorporated by reference in the
Prospectus and (2) in "ITEM 1 - LEGAL PROCEEDINGS" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual report, in each
case insofar as such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, fairly present the information
called for under the Exchange Act with respect to such legal matters, documents
and proceedings.
2. To the best of my knowledge, the execution and delivery by the
Company of, and the performance by the Company of its obligations under, the
Underwriting Agreement and the issuance and sale of the Underwritten Securities
will not contravene any provision of any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole.
3. To the best of my knowledge, I do not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
I am delivering this opinion to you pursuant to Section 4(c) of the
Underwriting Agreement, and no persons other than the several Underwriters are
entitled to rely on this opinion.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of Arizona.
A-1
Exhibit B
Opinion of Debevoise & ▇▇▇▇▇▇▇▇,
Counsel for the Company
The opinion of Debevoise & ▇▇▇▇▇▇▇▇, independent counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting Agreement
shall be to the effect that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New York, with full
corporate power and authority under such laws to own and lease its properties
and conduct its business as described in the Prospectus, and is duly qualified
to transact business as a foreign corporation and is in good standing under the
laws of the States of Arizona and New Mexico.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The Underwritten Securities have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters pursuant to
the Underwriting Agreement, will be fully paid and nonassessable; the
certificates for the Underwritten Securities are in valid and sufficient form;
the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Underwritten
Securities; no holder of any security of the Company has or will have any right
to require the registration of such security by virtue of any transaction
contemplated by the Underwriting Agreement; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership interests
in the Company are outstanding.
4. The Common Shares initially issuable upon conversion of the
Underwritten Securities have been duly authorized and reserved for issuance and
when issued and delivered upon conversion in accordance with the provisions of
the Underwritten Securities, will have been validly issued and will be fully
paid and nonassessable, and the issuance of such Common Shares is not subject to
any preemptive or similar rights.
5. Neither the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement,
nor the issue and sale of the Underwritten Securities will contravene any
provision of applicable law or the Certificate of Incorporation or By-Laws of
the Company or, to the best of our knowledge, any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company. To
the best of our knowledge, no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting Agreement
or the issuance and sale of the Underwritten Securities, other than the order of
the Securities and Exchange Commission making the Registration Statement
effective under the Securities Act and except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Underwritten Securities.
B-1
6. The statements (a) in the Prospectus under the captions "DESCRIPTION
OF THE PREFERRED SHARES" and "PLAN OF DISTRIBUTION" and (b) in the Registration
Statement under Item 15, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to therein,
fairly present the information called for under the Securities Act with respect
to such legal matters, documents and proceedings.
7. The Company is not an "INVESTMENT COMPANY" or an entity "CONTROLLED"
by an "INVESTMENT COMPANY", as such terms are defined in the Investment Company
Act of 1940, as amended.
8. The Registration Statement and Prospectus (except for the financial
statements and other financial and statistical information and schedules
included therein or incorporated by reference as to which we express no opinion)
appear on their face to be appropriately responsive in all material respects
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder.
9. Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial statements and
other financial and statistical information and schedules included therein or
incorporated by reference as to which we express no opinion) appears on its face
to be appropriately responsive in all material respects with the Exchange Act
and the applicable rules and regulations of the Commission thereunder.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectus except to the limited extent stated in paragraphs 5
and 7 above. In the course of our review and discussion of the contents of the
Registration Statement and the Prospectus with certain officers and employees of
the Company and its independent accountants, but without independent check or
verification, no facts have come to our attention which cause us to believe that
the Registration Statement (other than the financial statements and other
financial and statistical information contained therein or incorporated by
reference, as to which we express no belief) at the time it became effective
contained, or as of the date hereof contains, an untrue statement of a material
fact or omitted, or as of the date hereof omits, to state a material fact
required to be stated therein or necessary to make the statements contained
therein not misleading, or that the Prospectus (other than the financial
statements and other financial and statistical information contained therein or
incorporated by reference as to which we express no belief) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
We are delivering this opinion to you pursuant to Section 4(d) of the
Underwriting Agreement, and no persons other than the several Underwriters are
entitled to rely on this opinion.
The opinions expressed herein are limited to the Federal laws of the
United States and the laws of the State of New York.
B-2
Exhibit C
Opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Counsel for the Underwriters
The opinion of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, to be delivered pursuant to Section 4(e) of the Underwriting
Agreement shall be to the effect that:
1. The execution and delivery of the Underwriting Agreement have been
duly authorized by all necessary corporate action of the Company, and the
Underwriting Agreement has been duly executed and delivered by the Company.
2. The Underwritten Securities have been duly authorized by all
necessary corporate action of the Company, have been validly issued by the
Company and are fully paid and nonassessable.
3. The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive rights under the Certificate of Incorporation
or By-Laws of the Company or the law of New York to subscribe for the
Underwritten Securities or the Common Shares issuable upon the conversion
thereof; and the Common Shares into which the Underwritten Securities are
convertible have been duly authorized by all necessary corporate action of the
Company and reserved for issuance upon conversion and, upon issuance thereof on
conversion of the Underwritten Securities in accordance with the terms of the
Underwritten Securities, will be validly issued, fully paid and nonassessable.
4. The statements in the Prospectus under the captions "DESCRIPTION OF
THE PREFERRED SHARES" and "PLAN OF DISTRIBUTION," insofar as such statements
purport to summarize certain provisions of the Underwritten Securities and the
offering thereof, provide a fair summary of such provisions.
5. No information has come to the attention of such counsel that causes
it to (1) believe that the Registration Statement, including the documents
incorporated by reference therein (except the financial statements and Schedules
and other financial and statistical data included therein, as to which such
counsel need not express any belief), at the time it became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (2) believe that the Prospectus, including the documents
incorporated by reference therein (except the financial statements and Schedules
and other financial and statistical data included therein, as to which such
counsel need not express any belief), as of the date thereof or of the date such
opinion is delivered, contained or contains an untrue statement of a material
fact or omitted or omits 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.
With respect to paragraph 5 above, such counsel may provide such
statements in a separate letter, and may state that their opinion and belief are
based upon their participation in the preparation of the Basic Prospectus
Supplement and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents of the
Prospectus and of the Registration Statement (including portions of certain of
the
C-1
documents incorporated by reference) but are without independent check or
verification, except as specified.
B-2
Exhibit D
[Letterhead of officer or director of ▇▇▇▇▇▇ Dodge Corporation]
▇▇▇▇▇▇ Dodge Corporation
Public Offering of Common Shares
________, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "UNDERWRITING AGREEMENT"), between ▇▇▇▇▇▇
Dodge Corporation, a New York corporation (the "COMPANY"), and ▇.▇. ▇▇▇▇▇▇
Securities Inc. as manager of a group of Underwriters named therein, relating to
an underwritten public offering of Common Shares, $6.25 par value (the "COMMON
SHARES"), of the Company.
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned will not, without the prior
written consent of ▇.▇. ▇▇▇▇▇▇ Securities Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreement, other than Common Shares disposed of as bona fide
gifts approved by ▇.▇. ▇▇▇▇▇▇ Securities Inc.
If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting Agreement),
the agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer or director]
[Name and address of officer or director]
D-1
