EXHIBIT 1-1
ARVIN INDUSTRIES, INC.
(an Indiana corporation)
UNDERWRITING AGREEMENT
[Date]
[Name and address of Underwriters
or Representatives]
Dear Sirs:
Arvin Industries, Inc., an Indiana corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), (1) the principal amount of its senior debt
securities, if any, identified in Schedule I hereto (the "Senior
Securities"), to be issued under an Indenture dated as of July 3,
1990, between the Company and Harris Trust and Savings Bank, as
trustee (the "Senior Trustee"), as amended (said Indenture, the
"Senior Indenture"); (2) the principal amount of its subordinated debt
securities, if any, identified in Schedule I hereto (the "Subordinated
Securities" and together with the Senior Securities being collectively
referred to herein as the "Debt Securities") to be issued under an
Indenture dated of ___________ ___, 1994 between the Company and NBD
Bank, N.A., as trustee (the "Subordinated Trustee", and together with
the Senior Trustee, the "Trustees") (said Indenture, the "Subordinated
Indenture") (the Senior Indenture and the Subordinated Indenture being
collectively referred to herein as the "Indentures"); (3) warrants, if
any (the "Debt Warrants"), to purchase an aggregate principal amount
of Debt Securities, which warrants are to be issued pursuant to a Debt
Warrant Agreement (the "Debt Warrant Agreement") between the Company
and a warrant agent (the "Debt Warrant Agent"), all as specified in
Schedule I hereto; (4) the preferred shares of the Company, if any,
identified in Schedule I hereto (the "Preferred Shares"); (5)
depositary receipts, if any, evidencing an interest in depositary
shares (the "Depositary Shares") representing an interest in Preferred
Shares of the Company to be issued under a Deposit Agreement (the
"Deposit Agreement") among the Company, a U.S. bank or trust company
as depositary (the "Depositary"), and the holders from time to time of
such depositary receipts all as indicated in Schedule I hereto; (6)
the common shares, par value $2.50 per share, of the Company (the
"Common Shares"), including, if then in existence, the related
preferred share purchase rights (the "Rights") provided for in the
Rights Agreement dated as of May 29, 1986, as amended, between the
Company and Harris Trust and Savings Bank, as rights agent thereunder
(the "Rights Agreement") (all references herein to the Common Shares
shall include the Rights unless the context indicates otherwise), if
any, as indicated in Schedule I hereto, (7) warrants, if any, to
purchase Preferred Shares (the "Preferred Shares Warrants") of the
Company, which warrants are to be issued pursuant to a Preferred
Shares Warrant Agreement (the "Preferred Shares Warrant Agreement")
between the Company and a warrant agent (the "Preferred Shares Warrant
Agent"), all as specified in Schedule I hereto; (8) warrants, if any,
to purchase Common Shares ("Common Shares Warrants") of the Company,
which warrants are to be issued pursuant to a Common Shares Warrant
Agreement (the "Common Shares Warrant Agreement") between the Company
and a warrant agent (the "Common Shares Warrant Agent"), all as
specified in Schedule I hereto; and/or (9) warrants, if any, to
purchase Depositary Shares (the "Depositary Shares Warrants") of the
Company, which warrants are to be issued pursuant to a Depositary
Shares Warrant Agreement (the "Depositary Shares Warrant Agreement"
and together with each other warrant agreement contemplated herein
being referred to herein collectively as the "Warrant Agreements")
between the Company and a warrant agent (the "Depositary Shares
Warrant Agent" and together with each other warrant agent contemplated
herein being referred to herein collectively as the "Warrant Agents"),
all as specified in Schedule I hereto. The Debt Securities, Debt
Warrants, Preferred Shares, Depositary Shares, Common Shares,
Preferred Shares Warrants, Common Shares Warrants and Depositary
Shares Warrants (all such warrants being referred to herein
collectively as "Warrants") may be sold either separately or as units
(the "Units") together with any of the foregoing. The Debt
Securities, Debt Warrants, Preferred Shares, Depositary Shares, Common
Shares, Preferred Shares Warrants, Common Shares Warrants, Depositary
Shares Warrants and Units described in Schedule I hereto shall
collectively be referred to herein as the "Purchased Securities". The
Company may also grant to the Underwriters an option to purchase up to
such additional number of Purchased Securities as is specified in
Schedule I hereto (the "Option Securities"). The Purchased Securities
and Option Securities shall be collectively referred to herein as the
"Securities". If the firm or firms listed in Schedule II hereto
include only the firm or firms described above as Representatives,
then the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
SECTION 1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-
3 (No.33-____) relating to the Securities and the offering
thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act") and has filed such
amendments thereto as may have been required to the date hereof.
Such registration statement, as amended, has been declared
effective by the Commission, and the Indentures have each been
qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Company proposes to file with the
Commission pursuant to Rule 424(b) under the Act a supplement to
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the form of prospectus included in such registration statement
relating to the Securities and the plan of distribution thereof
and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth
therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus in the form
in which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus"; and such supplemented form of
prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424(b) (including the Basic
Prospectus as so supplemented) is hereinafter called the "Final
Prospectus". Any preliminary form of the Final Prospectus which
has heretofore been filed pursuant to Rule 424(b) is hereinafter
called the "Preliminary Final Prospectus". Any reference herein
to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the date of this Agreement, or the
issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case
may be, deemed to be incorporated therein by reference.
(b) On the effective date of the Registration Statement, as
of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the Closing
Date (as hereinafter defined), any amendment to the Registration
Statement becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when
any supplement to the Final Prospectus is filed with the
Commission and at the applicable Closing Date, (i) the
Registration Statement, as amended as of any such time, any Final
Prospectus, as amended or supplemented as of any such time, and
the Indentures will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act and
the Exchange Act and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) the Final
Prospectus, as amended or supplemented as of any such time, did
not and will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
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statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
the Final Prospectus or any amendment thereof or supplement
thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter, or on
behalf of any Underwriter by the Representatives, expressly for
use in the Registration Statement or the Final Prospectus.
(c) The documents incorporated by reference in the Final
Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time they were or hereafter are filed or last amended, as the
case may be, with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act and
the rules and regulations thereunder and, when read together and
with the other information in the Basic Prospectus and the Final
Prospectus, at the time the Registration Statement and any
amendments thereto became or become effective, at the date of
this Agreement and at each Closing Date, did not and will not
contain 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 or are made, not misleading.
(d) The accountants who certified the financial statements
and supporting schedules included or incorporated by reference in
the Registration Statement and the Final Prospectus are
independent public accountants as required by the Act and the
rules and regulations thereunder.
(e) The financial statements (other than quarterly or other
unaudited interim financial statements) included or incorporated
by reference in the Registration Statement and the Final
Prospectus present fairly the financial position of the Company
and its consolidated subsidiaries as at the dates indicated and
the results of their operations for the periods specified; said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
(except as otherwise stated therein) basis; the supporting
schedules included or incorporated by reference in the
Registration Statement present fairly the information required to
be stated therein; and the Company's ratios of earnings to fixed
charges (actual and, if any, pro forma) included in the Final
Prospectus and in Exhibit 12 to the Registration Statement have
been calculated in compliance with Item 503(d) of Regulation S-K
of the Commission. Any quarterly or other unaudited interim
financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Final Prospectus, have been prepared in compliance with the
applicable requirements of the Act, the rules and regulations
thereunder, the Exchange Act and the rules and regulations
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thereunder and have been prepared on a basis substantially
consistent (except as otherwise stated therein) with that of the
applicable audited financial statements included or incorporated
by reference in the Registration Statement and the Final
Prospectus, and such unaudited interim financial statements
contain all adjustments necessary to present a fair statement of
the results of operations for the periods reported. Any
financial information and statistical data set forth in the Final
Prospectus under the captions "Selected Financial Data" and
"Capitalization" or other similar captions are fairly stated in
all material respects in relation to the consolidated financial
statements of the Company from which they have been derived.
(f) Since the respective dates as to which information is
given in the Registration Statement and the Final Prospectus,
except as otherwise stated therein (including information
contained in documents subsequently incorporated by reference in
the Registration Statement or the Final Prospectus), (1) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; (2)
there have been no transactions entered into by the Company or
any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise; and (3) except for
regular dividends, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of
its capital stock.
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Indiana with corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Final Prospectus;
and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of the
Company and its subsidiaries considered as one enterprise.
(h) Each Significant Subsidiary of the Company (as that
term is used in Rule 405 of the 1933 Act Regulations) has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Final Prospectus
and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
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such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of the
Company and its subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each Significant
Subsidiary shown as owned by the Company on Schedule A to this
Agreement has been duly authorized and validly issued and is
fully paid and nonassessable and is owned by the Company, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(i) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Final Prospectus under the
caption "Capitalization" (except for subsequent issuances, if
any, pursuant to reservations or agreements referred to in the
Final Prospectus); the certificate for each outstanding Common
Share also represents one Right per share (if the Rights are then
in existence), the issued and outstanding Common Shares have been
duly authorized and validly issued and are fully paid and
nonassessable; and (if the Rights Agreement is then in effect)
the outstanding Rights have been duly authorized and validly
issued under the Rights Agreement and are entitled to the
benefits thereof.
(j) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material contract, indenture, joint
venture agreement, mortgage, loan agreement, note, lease or other
instrument to which it or its property may be bound; and the
execution and delivery of this Agreement, the Indentures, the
Warrant Agreements, the Delayed Delivery Contracts, if any, and
the Securities and the consummation of the transactions
contemplated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with or
constitute a breach of, or a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, joint venture agreement,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by
which any of them may be bound, or to which any of the property
or assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries
or any applicable law, administrative regulation or
administrative or court decree.
(k) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the
Company, is imminent; and the Company is not aware of any
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existing or imminent labor disturbance by the employees of any of
its or its subsidiaries' principal suppliers, manufacturers or
contractors which might be expected to result in any material
adverse change in the condition, financial or otherwise, or in
the earnings, affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(l) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any of its subsidiaries, which is
required to be disclosed in the Registration Statement or the
Final Prospectus (other than as disclosed therein), or which
might materially and adversely affect the consummation of this
Agreement or, except in cases in which such consequences are
remote, which might result in any material adverse change in the
condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, or, except in cases in which such consequences
are remote, which might materially and adversely affect the
properties or assets thereof; all pending legal or governmental
proceedings to which the Company or any subsidiary is a party or
of which any of their property is the subject which are not
described in the Registration Statement or the Final Prospectus,
including ordinary routine litigation incidental to the Company's
business, are, considered in the aggregate, not material to the
Company and its subsidiaries considered as one enterprise; and
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the Act or by the rules and regulations
thereunder which have not been so filed.
(m) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, the "Intellectual
Property") presently employed by them in connection with the
business now operated by them, except where the failure to own or
possess, or inability to so acquire, such Intellectual Property
would not result in any material adverse change in the condition,
financial or otherwise, or in the assets, earnings, affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise; and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse change in the
condition, financial or otherwise, or in the assets, earnings,
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affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(n) No authorization, approval or consent of any court or
governmental authority or agency is required for the consummation
by the Company of the transactions contemplated by this
Agreement, except such as may be required under the Act or the
rules and regulations thereunder or state securities laws for the
Securities and the qualification of the Indentures under the
Trust Indenture Act.
(o) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate
state, federal or foreign governmental or regulatory agencies or
bodies necessary to conduct the business now operated by them,
except where the failure to possess such certificates,
authorities or permits would not materially and adversely affect
the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one
enterprise; and neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise.
(p) This Agreement and the Delayed Delivery Contracts, if
any, have been duly authorized, executed and delivered by the
Company.
(q) In the case of an offering of Debt Securities or Debt
Warrants, each of the applicable Indenture and Debt Warrant
Agreement, if any, has been duly and validly authorized, executed
and delivered by the Company and is substantially in the form
filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement at the time the
Registration Statement became effective; the applicable Indenture
has been duly qualified under the Trust Indenture Act; and,
assuming due authorization, execution and delivery by the Trustee
and/or Debt Warrant Agent, each of the applicable Indenture and
Debt Warrant Agreement, if any, constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its respective terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
the Debt Securities are in the form contemplated by the
applicable Indenture and the Debt Securities and Debt Warrants
have been duly and validly authorized by the Company and, when
executed by the proper officers of the Company, countersigned by
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the Debt Warrant Agent under the Debt Warrant Agreement and
authenticated in accordance with the provisions of the applicable
Indenture and delivered pursuant to the Debt Warrant Agreement,
in the case of Debt Warrants, and in all cases delivered to and
paid for by the Underwriters pursuant to this Agreement, in the
case of all of the Underwriters' Securities, or by the purchasers
thereof pursuant to the Delayed Delivery Contracts, in the case
of any Contract Securities, will in each case constitute a valid
and binding obligation of the Company, be convertible (in the
case of those Subordinated Securities that by their terms are so
convertible) for Common Shares or other securities of the Company
in accordance with their terms as set forth in the Final
Prospectus and will be entitled to the benefits of the applicable
Indenture enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally
or by general equitable principles; if the Debt Securities are
convertible into Common Shares or other securities of the
Company, the Common Shares or other securities issuable upon such
conversion will have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid (assuming the
underlying Debt Securities have been paid for) and nonassessable;
such Common Shares or other securities will have been duly
authorized and issued, will be fully paid (assuming the
underlying Debt Securities have been paid for) and nonassessable
and will conform to the description thereof contained in the
Final Prospectus; and the stockholders of the Company have no
preemptive rights with respect to any of such Common Shares or
other securities issuable upon such conversion.
(r) In the case of an offering of Preferred Shares,
including any Preferred Shares constituting Option Securities,
the Preferred Shares being delivered and paid for at such Closing
Date have been duly authorized, validly issued and are fully paid
and nonassessable; the Contract Securities, when issued,
delivered and sold pursuant to the Delayed Delivery Contracts,
will be duly issued, fully paid and nonassessable; the Contract
Securities, when so issued, delivered and sold, will conform, to
the descriptions thereof contained in the Final Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to any of such Preferred Shares. If the Preferred Shares
being delivered at such Closing Date are convertible into Common
Shares or other securities of the Company, such Preferred Shares
are, and the Contract Securities, when so issued, delivered and
sold, will be, convertible into Common Shares or other securities
of the Company in accordance with their terms; the Common Shares
or other securities initially issuable upon conversion of such
Preferred Shares will have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such
conversion, will be duly issued, fully paid and nonassessable;
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such Common Shares have been duly authorized and issued, are
fully paid (assuming the underlying Preferred Shares have been
paid for) and nonassessable and conform to the description
thereof contained in the Final Prospectus.
(s) In the case of an offering of Depositary Shares,
including any Depositary Shares constituting Option Securities,
the Preferred Shares being paid for, delivered to the Depositary
and represented by the Depositary Shares at such Closing Date
have been duly authorized; the Preferred Shares delivered to the
Depositary and represented by Depositary Shares at such Closing
Date, assuming that such Depositary Shares have been issued, paid
for and delivered to the Depositary against delivery of
depositary receipts evidencing the applicable Depositary Shares
to the Underwriters, have been validly issued and are fully paid
and nonassessable; the Contract Securities, when issued,
delivered and sold pursuant to the Delayed Delivery Contracts,
will be duly issued, fully paid and nonassessable; the Contract
Securities, when so issued, delivered and sold, will conform, to
the descriptions thereof contained in the Final Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to any of such Depositary Shares or the Preferred Shares
represented thereby. If Preferred Shares represented by
Depositary Shares being delivered at such Closing Date are
convertible into Common Shares or other securities, such
Preferred Shares are, and the Preferred Shares represented by
Depositary Shares constituting Contract Securities, when so
issued, delivered and sold, will be, convertible into Common
Shares or other securities of the Company in accordance with
their terms; the Common Shares initially issuable upon conversion
of Preferred Shares represented by Depositary Shares will have
been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be duly
issued, fully paid and nonassessable; such Common Shares have
been validly authorized and issued, are fully paid and
nonassessable and conform to the description thereof contained in
the Final Prospectus.
(t) In the case of an offering of Depositary Shares,
assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, the Deposit Agreement has been duly
authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally
or by general equitable principles; and the depositary receipts
when executed, paid for and delivered pursuant to the Deposit
Agreement upon deposit of the Preferred Shares thereunder, will
be validly issued and will entitle the holders thereof to the
rights in respect of the applicable Depositary Shares specified
therein and in the Deposit Agreement.
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(u) In the case of an offering of Common Shares, including
any Common Shares constituting Option Securities, the Common
Shares being delivered and paid for at such Closing Date have
been duly authorized, validly issued and are fully paid and
nonassessable; the related Rights (if the Rights Agreement is
then in effect) have been duly authorized and validly issued
under the Rights Agreement and are entitled to the benefits
thereof; the Contract Securities, when issued, delivered and
sold, pursuant to the Delayed Delivery Contracts, will be duly
issued, fully paid and nonassessable; the Contract Securities,
when so issued, delivered and sold, will conform to the
description thereof contained in the Final Prospectus; neither
the issuance of the Common Shares nor the issuance of the related
Rights is subject to preemptive rights; and the Company has
reserved one one-hundredth share of Series C Preferred for
issuance upon exercise of each Right.
(v) In the case of an offering of Preferred Shares Warrants
and Common Shares Warrants, the applicable Warrant Agreement has
been duly authorized, executed and delivered by the Company; and,
assuming due authorization, execution and delivery by the
applicable Warrant Agent, the applicable Warrant Agreement
constitutes a valid and binding instrument enforceable against
the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
the applicable Warrants have been duly and validly authorized
and, when executed by the proper officers of the Company,
countersigned by the applicable Warrant Agent under the
applicable Warrant Agreement and in all cases delivered pursuant
to the applicable Warrant Agreement and delivered to and paid for
by the Underwriters pursuant to this Agreement (or by the
purchasers thereof pursuant to the Delayed Delivery Contracts in
the case of any Contract Securities) will in each case constitute
a valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles;
and will be entitled to the benefits of the applicable Warrant
Agreement; and in the case of Preferred Shares Warrants and
Common Shares Warrants, the Preferred Shares or Common Shares
initially issuable upon the exercise thereof have been duly and
validly authorized and reserved for issuance upon such exercise
and such shares, when issued upon such exercise in accordance
with the terms of the respective Warrant Agreement and at the
prices therein provided for, will be duly authorized, validly
issued, fully paid and nonassessable.
(w) The Securities, the Rights, the Company's Series C
Junior Participating Preferred Shares (the "Series C Preferred")
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and, in the case of an offering of Debt Securities and/or Debt
Warrants, the applicable Indenture, will conform in all material
respects to the respective statements relating thereto contained
in the Final Prospectus and the Registration Statement and will
be in substantially the respective forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration
Statement.
(x) The Senior Debt Securities rank and will rank on a
parity with all unsecured indebtedness (other than subordinated
indebtedness) of the Company that is outstanding on the date
hereof or that may be incurred hereafter, and senior to all
subordinated indebtedness of the Company that is outstanding on
the date hereof or that may be incurred hereafter.
(y) There are no holders of securities of the Company with
currently exercisable registration rights to have any securities
so held included in the offering contemplated by this Agreement
and the Registration Statement.
(z) The Company meets, and on the effective date of the
Registration Statement met and on each Closing Date will meet,
the requirements for use of Form S-3 under the Act and the rules
and regulations thereunder.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering and sale of the Securities pursuant to
this Agreement shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from
the Company, at the respective purchase prices and upon the terms and
conditions set forth in Schedule I hereto the principal amount or
number of Purchased Securities set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Purchased Securities pursuant to delayed delivery
arrangements, the respective principal amount or number of such
Purchased Securities to be purchased by the Underwriters, shall be as
set forth in Schedule II hereto less the respective amounts or number
of Contract Securities determined as provided below. Purchased
Securities to be purchased by the Underwriters are herein sometimes
called the "Underwriters' Securities" and Purchased Securities to be
purchased pursuant to delayed delivery contracts ("Delayed Delivery
Contracts") as hereinafter provided are herein called "Contract
Securities".
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(b) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Purchased Securities from the
Company pursuant to Delayed Delivery Contracts, substantially in the
form of Schedule III hereto but with such changes therein as the
Company may authorize or approve. The Underwriters will endeavor to
make such arrangements and, as compensation therefor, the Company will
pay to the Representatives, for the account of the Underwriters, on
the applicable Closing Date, an amount as follows: (i) in the case of
Debt Securities, Debt Warrants and Units consisting of Debt Securities
and Debt Warrants, an amount equal to the percentage set forth in
Schedule II hereto of the principal amount of the Debt Securities or
number of Debt Warrants for which such Delayed Delivery Contracts are
made, (ii) in the case of Preferred Shares, Depositary Shares and
Units consisting of Preferred Shares and any other Securities, an
amount equal to the percentage set forth in Schedule II hereto of the
aggregate liquidation preference of Preferred Shares, including shares
represented by such Depositary Shares, for which Delayed Delivery
Contracts are made, (iii) in the case of all other Securities, an
amount as set forth in Schedule II hereto with respect to Securities
for which such Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions. The Company will
enter into Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters, and the parties to
such Delayed Delivery Contracts, have been approved by the Company
but, except as the Company may otherwise agree, each such Delayed
Delivery Contract must (x) in the case of Debt Securities, Debt
Warrants or Units consisting of Debt Securities and Debt Warrants, be
for not less than the minimum principal amount set forth in Schedule I
hereto and the aggregate principal amount of Contract Securities may
not exceed the maximum aggregate principal amount set forth in
Schedule I hereto, (y) in the case of Preferred Shares, Depositary
Shares or Units consisting of Preferred Shares and any other
Securities, be for not less than the minimum number of Preferred
Shares set forth in Schedule I hereto and the aggregate number of
Preferred Shares, including shares represented by such Depositary
Shares, of Contract Securities may not exceed the maximum aggregate
number of Preferred Shares set forth in Schedule I hereto and (z) in
the case of all other Securities, be for not less than the minimum
number of each of such Securities respectively set forth in Schedule I
hereto and the aggregate number of each of such Securities
constituting Contract Securities may not exceed the maximum number of
each of such Securities respectively set forth in Schedule I hereto.
The Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The principal
amount or number of Purchased Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced by an
amount which shall bear the same proportion to the total principal
amount or number of Contract Securities as the principal amount or
number set forth opposite the name of such Underwriter bears to the
aggregate principal amount or number of such Purchased Securities set
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forth in Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion and so
advise the Company in writing; provided, however, that the total
principal amount or number of the Purchased Securities to be purchased
by all Underwriters shall be the aggregate principal amount or number
set forth in Schedule II hereto less the aggregate principal amount or
number of Contract Securities. The Company will advise the
Representatives not later than the business day prior to the
applicable Closing Date of the aggregate principal amount or number,
as the case may be, of the Contract Securities.
SECTION 3. Delivery and Payment. (a) Delivery of the
Underwriters' Securities shall be made at the office of Mayer, Brown &
Platt, 190 South LaSalle Street, Chicago, Illinois, or at such other
place as shall be agreed upon by the Representatives and the Company,
or at the office of The Depositary Trust Company ("DTC") if the
Underwriters' Securities are issued in book-entry form, and payment
for such Securities shall be made at the above office of Mayer, Brown
& Platt, or at such other place as shall be agreed upon by the
Representatives and the Company, on the date and at the time specified
in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided
in Section 11 hereof (such date and time of delivery and payment for
the Underwriters' Securities being herein referred to in the case of
Purchased Securities as the "Purchased Securities Closing Date", in
the case of Option Securities as the "Option Securities Closing Date"
and each such date being referred to herein as a "Closing Date").
Delivery of the Underwriters' Securities (which, in the case of
Depositary Shares, shall be deemed to occur upon confirmation of
delivery of the applicable number of Preferred Shares to the
Depositary against delivery of the depositary receipts evidencing the
Depositary Shares in respect thereof) shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of
the Company by certified or official bank check or checks drawn on or
by a Chicago Clearing House bank and payable in next day funds or by
such other means as are specified in Schedule I hereto.
(b) If specified in Schedule I hereto, the several Underwriters
will be compensated for their respective commitments and obligations
by separate payment to the Representatives for the respective accounts
of such Underwriters. Any such payment by the Company to the
Underwriters shall be made simultaneously with the payment by the
Underwriters to the Company of the purchase price of the Underwriters'
Securities as specified herein. Any separate payment of compensation
by the Company to the Underwriters shall be made by certified or
official bank check or checks drawn on or by a Chicago Clearing House
bank and payable in next day funds to the order of the Representatives
or by such other means as are specified in Schedule I hereto.
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(c) If specified in Schedule I and the Underwriters' Securities
are issued in book-entry form, payment shall be made in immediately
available funds by fed wire. Certificates for the Underwriters'
Securities shall be registered in such names and in such denominations
as the Representatives may request not less than two full business
days in advance of the applicable Closing Date, provided that, if the
Underwriters' Securities are in book-entry form, the registration
thereof, including the determination of the denominations thereof,
shall be in accordance with the regulations of DTC.
(d) The Company agrees to have the Underwriters' Securities
available for inspection, checking or packaging by the Representatives
in New York, New York, not later than 1:00 P.M., New York City time,
on the business day prior to the applicable Closing Date, unless the
Underwriters' Securities are in book-entry form.
SECTION 4. Covenants of the Company. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of this Agreement,
the Company will prepare a Final Prospectus setting forth the
principal amount or number of Securities covered thereby and
their terms (not otherwise specified in the applicable Indenture
in the case of Debt Securities and/or Debt Warrants), the names
of the Underwriters and the principal amount or number of
Securities which each severally has agreed to purchase, the names
of the Representatives, the price at which the Securities are to
be purchased by the Underwriters from the Company, the initial
public offering price, the selling concession and reallowance, if
any, and such other information as the Representatives and the
Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the
Final Prospectus to the Commission for filing pursuant to Rule
424 of the Act and will furnish to the Underwriters named therein
as many copies of the Final Prospectus and any Preliminary Final
Prospectus as such Underwriters shall reasonably request.
(b) The Company will notify the Representatives
immediately, and promptly confirm the notice in writing, (i) of
the effectiveness of any amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Final Prospectus or any document to be
filed pursuant to the Exchange Act which will be incorporated by
reference into the Registration Statement or Final Prospectus,
(iii) of the receipt of any comments or other communications from
the Commission with respect to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus or for additional information,
and (v) of the issuance by the Commission of any stop order
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suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will
make every reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the lifting
thereof at the earliest possible moment.
(c) For so long as a Final Prospectus is required to be
delivered in connection with the sale of Securities covered by
this Agreement, the Company will give the Representatives notice
of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Final Prospectus
(including through the filing of documents under the Exchange Act
or a prospectus filed pursuant to Rule 424(b) which differs from
the prospectus on file at the Commission), whether pursuant to
the Act, the Exchange Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement
or other documents proposed to be filed a reasonable time in
advance of filing, and will not file any such amendment or
supplement to which the Representatives or counsel for the
Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives as many
signed and conformed copies of the registration statement (as
originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the Act) as the Representatives may
reasonably request, and will also deliver to the Representatives
a conformed copy of the Registration Statement and each amendment
thereto for each of the Underwriters.
(e) If any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the
Underwriters or counsel for the Company, to further amend or
supplement the Final Prospectus in order that the Final
Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or
prospective purchaser or if it shall be necessary, in the opinion
of either such counsel, at any such time to amend or supplement
the Registration Statement or the Final Prospectus in order to
comply with the requirements of the Act or rules and regulations
thereunder, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing
documents pursuant to the Exchange Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make
the Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities and any Debt Securities,
Common Shares or Preferred Shares which may be issuable pursuant
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to the exercise or conversion, as the case may be, of Securities
offered by the Company, for offering and sale under the
applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate, and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Securities. The Company
will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been
qualified as provided above.
(g) With respect to each sale of Securities, the Company
will make generally available to its security holders as soon as
practicable, but not later than 60 days (or 90 days in the case
of periods which are a fiscal year of the Company) after the
close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the Act) covering
twelve-month periods beginning, in each case, not later than the
first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration
Statement relating to such Securities that satisfies the
provisions of Section 11(a) of the Act and the rules and
regulations thereunder.
(h) The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the
Final Prospectus relating to such Securities under "Use of
Proceeds".
(i) The Company will use its best efforts to (i) arrange
for the listing of any Common Shares constituting Securities
hereunder or issuable upon conversion or exercise of any of the
Securities upon notice of issuance on the New York Stock
Exchange, Inc. or such other national securities exchanges on
which the Company's outstanding Common Shares are then listed and
(ii) list any other Securities on the exchanges, if any,
specified in Schedule I hereto.
(j) The Company, during the period when the Final
Prospectus is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the
time periods required by the Exchange Act and the rules and
regulations thereunder.
(k) For a period of five years after each Closing Date, the
Company will furnish to the Representatives copies of all reports
and communications delivered to shareholders or holders of any of
the Securities as a class and will also furnish copies of all
reports (excluding exhibits, unless requested by the
Representatives) filed with the Commission on Forms 8-K, 10-Q and
10-K.
-17-
(l) In the event that the Securities being issued and sold
pursuant to this Agreement are Common Shares or Common Share
Warrants, for a period of 90 days from the date of this
Agreement, the Company will not, without the Representatives'
prior written consent, directly or indirectly, sell, offer to
sell, grant any option for the sale of, enter into an agreement
to sell, or otherwise dispose of, any Securities to which this
Agreement relates or securities similar to such Securities, or
any securities convertible into or exercisable for any such
Securities or any such similar securities, except for Securities
sold pursuant to this Agreement, securities issued upon
conversion of Securities issued under this Agreement and Common
Shares issued pursuant to employee benefit, executive
compensation and dividend reinvestment plans of the Company, and
the Company will not file a registration statement under the Act
with respect to any such Securities or securities similar to such
securities of the Company held by others.
(m) In the event that the Securities being issued and sold
pursuant to this Agreement are Securities other than Common
Shares or Common Share Warrants, for a period of 21 days from the
date of this Agreement, the Company will not, without the
Representatives' prior written consent, directly or indirectly,
sell, offer to sell, grant any option for the sale of, enter into
an agreement to sell, or otherwise dispose of, any Securities to
which this Agreement relates or securities similar to such
Securities, or any securities convertible into or exchangeable or
exercisable for any such Securities or any such similar
securities, except for Securities sold pursuant to this Agreement
and securities issued upon conversion of Securities issued under
this Agreement, and the Company will not file a registration
statement under the Act with respect to any such Securities or
securities similar to such securities of the Company held by
others.
(n) If necessary or otherwise required, the Company will
comply with all of the provisions of Section 517.075 of the
Florida Statutes, and all rules and regulations promulgated
thereunder, relating to issuers doing business in Cuba.
SECTION 5. Payment of Expenses. The Company will pay all
expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing, filing and
delivery of the registration statement (as originally filed) and all
amendments thereto, (ii) the preparation, issuance and delivery to the
Underwriters of the certificates for the Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Securities under applicable state securities laws
in accordance with the provisions of Section 4(f), including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (v)
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the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the registration statement (as
originally filed) and any amendments thereto, and of the Final
Prospectus and any amendments or supplements thereto, (vi) the
printing and delivery to the Underwriters of copies of the applicable
Indenture and any Blue Sky Survey and Legal Investment Survey, (vii)
the fees, if any, of rating agencies, (viii) the fees and expenses, if
any, incurred in connection with the listing of the Securities on any
securities exchange, (ix) the fees and expenses of the Trustees, if
any, including the fees and disbursements of counsel for the Trustees
in connection with the Indentures and the Securities, and (x) the
fees, if any, of the National Association of Securities Dealers, Inc.
If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 6 or Section 10(i), the
Company shall reimburse the Underwriters named in this Agreement for
all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 6. Conditions of Underwriters' Obligations. The
obligations of the Underwriters hereunder are subject to the accuracy
of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions
hereof, to the performance by the Company of its obligations,
covenants and agreements hereunder, and to the following further
conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 under the Act not later than 5:30
p.m., New York City time, on the second business day following
the date hereof; and at the applicable Closing Date (i) no stop
order suspending the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission and any request on the
part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the
Underwriters, (ii) except where the only Securities are Common
Shares or Common Shares Warrants, the rating assigned by any
nationally recognized securities rating agency to any debt
securities or preferred shares of the Company as of the date of
this Agreement shall not have been lowered since the execution of
this Agreement and no such agency shall have publicly announced
that it has placed any of such debt securities or preferred
shares on what is commonly termed a "watch list" for possible
downgrading, and (iii) there shall not have come to the attention
of the Representatives any facts that cause them, after
disclosing such facts to, and discussing them with, the Company,
reasonably to believe that the Final Prospectus, at the time it
was required to be delivered to a purchaser of the Securities,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
-19-
therein, in light of the circumstances existing at such time, not
misleading.
(b) At the applicable Closing Date, the Representatives
shall have received:
(1) The favorable opinion, dated as of the
applicable Closing Date, of Schiff Hardin & Waite,
counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, with such
specificity as is necessary to reflect particularly the
Securities purchased on such Closing Date to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the
State of Indiana and a certificate of existence has been
issued with respect thereto as of a recent date pursuant to
Section 23-1-18-9 of the Indiana Business Corporation Law.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Final Prospectus.
(iii) To the best of their knowledge and information,
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one
enterprise.
(iv) In the case of an offering of Preferred Shares,
Depositary Shares or Common Shares, the authorized, issued
and outstanding capital stock of the Company is as set forth
in the Registration Statement and the Final Prospectus under
the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations or agreements
referred to in the Final Prospectus), and the shares of
issued and outstanding capital stock of the Company set
forth therein have been duly authorized and validly issued
and are fully paid and nonassessable; the certificate for
each outstanding Common Share also represents one Right per
share; and the outstanding Rights have been duly authorized
and validly issued under the Rights Agreement.
(v) Each Significant Subsidiary of the Company
incorporated in a jurisdiction in the United States of
America and set forth on Schedule A to this Agreement has
been duly incorporated and is validly existing as a
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corporation under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement and the Final
Prospectus; all of the issued and outstanding capital stock
of each such subsidiary which is held by the Company or any
direct or indirect subsidiary of the Company has been duly
authorized and validly issued.
(vi) This Agreement and the Delayed Delivery Contracts,
if any, have been duly authorized, executed and delivered by
the Company.
(vii) The Registration Statement is effective under the
Act and, to the best of their knowledge and information, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the Act or proceedings
therefor initiated or threatened by the Commission.
(viii) At the time the Registration Statement became
effective, at the date of this Agreement and at the
applicable Closing Date, the Registration Statement (other
than the financial statements, supporting schedules or other
financial or statistical information or data included or
incorporated by reference therein, as to which no opinion
need be rendered) complied as to form in all material
respects with the requirements of the Act, the rules and
regulations thereunder, the Trust Indenture Act and the
rules and regulations thereunder, and nothing has come to
their attention that leads them to believe that the
Registration Statement (other than the financial statements,
supporting schedules and other financial or statistical
information or data included or incorporated by reference
therein, as to which no opinion need be rendered), at the
time it became effective or at the date of this Agreement or
at the applicable Closing Date, contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Final
Prospectus, as amended or supplemented at the applicable
Closing Date, including the documents incorporated by
reference therein (other than the financial statements,
supporting schedules and other financial or statistical
information or data included or incorporated by reference
therein, as to which no opinion need be rendered) included
an untrue statement of a material fact or omitted 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.
(ix) To the best of their knowledge and information,
there are no legal or governmental proceedings pending or
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threatened which are required to be disclosed in the
Registration Statement, other than those disclosed in the
Final Prospectus or in any document incorporated by
reference therein.
(x) Each document filed pursuant to the Exchange Act
(other than the financial statements, supporting schedules
and other financial or statistical information or data
included therein, as to which no opinion need be rendered)
and incorporated by reference in the Final Prospectus at the
applicable Closing Date, complied when so filed (or, if
amended, when and as amended prior to the date of the Final
Prospectus) as to form in all material respects with the
Exchange Act and the rules and regulations thereunder.
(xi) To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to
be described, referred to or incorporated by reference in
the Registration Statement at the applicable Closing Date or
to be filed as exhibits thereto other than those described,
referred to or incorporated by reference therein or filed as
exhibits thereto, and the descriptions thereof or references
thereto in the Registration Statement at the applicable
Closing Date are correct.
(xii) No authorization, approval, consent or order of
any court or governmental authority or agency is required in
connection with the consummation by the Company of the
transactions contemplated by this Agreement, except such as
may be required under the Act, the rules and regulations
thereunder, the Exchange Act, the rules and regulations
thereunder or state securities laws and the qualification of
the applicable Indenture under the Trust Indenture Act (in
the case of an offering of Debt Securities or Debt
Warrants); the execution and delivery by the Company of this
Agreement, the applicable Indenture (in the case of an
offering of Debt Securities or Debt Warranties), any Delayed
Delivery Contracts and the Securities and the consummation
of the transactions contemplated herein and therein will not
result in any violation of the provisions of the charter or
by-laws of the Company; and to the best of their knowledge
and information, the execution and delivery by the Company
of this Agreement, the applicable Indenture (in the case of
an offering of Debt Securities or Debt Warrants), any
Delayed Delivery Contracts and the Securities and the
consummation of the transactions contemplated herein and
therein will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease
-22-
or other instrument identified to such counsel by the
Company as being material and to which the Company or any of
its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will
such action result in any violation of any applicable law,
administrative regulation or any administrative or court
order or decree known to them.
(xiii) The information in the Final Prospectus
describing the Securities, the Rights and the Series C
Preferred (and the applicable Indenture in the case of an
offering of Debt Securities or Debt Warrants), has been
reviewed by them and is correct (subject to the limitations
stated therein) and complete in all material respects.
(xiv) In the case of an offering of Debt Securities or
Debt Warrants, each of the applicable Indenture and Debt
Warrant Agreement, if any, has been duly and validly
authorized, executed and delivered by the Company and is
substantially in the form filed or incorporated by
reference, as the case may be, as an exhibit to the
Registration Statement at the time the Registration
Statement became effective; the applicable Indenture has
been duly qualified under the Trust Indenture Act; and,
assuming due authorization, execution and delivery by the
Trustee and/or Debt Warrant Agent, each of the applicable
Indenture and Debt Warrant Agreement, if any, constitutes a
valid and binding agreement of the Company, enforceable
against the Company in accordance with its respective terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles; the Debt Securities are in the
form contemplated by the applicable Indenture and the Debt
Securities and Debt Warrants have been duly and validly
authorized by the Company and, when executed by the proper
officers of the Company, countersigned by the Debt Warrant
Agent under the Debt Warrant Agreement and authenticated in
accordance with the provisions of the applicable Indenture
and delivered pursuant to the Debt Warrant Agreement, in the
case of Debt Warrants, and in all cases delivered to and
paid for by the Underwriters pursuant to this Agreement, in
the case of all of the Underwriters' Securities, or by the
purchasers thereof pursuant to the Delayed Delivery
Contracts, in the case of any Contract Securities, will in
each case constitute a valid and binding obligation of the
Company, be convertible (in the case of those Subordinated
Securities that by their terms are so convertible) for
Common Shares or other securities of the Company in
accordance with their terms as set forth in the Final
Prospectus and will be entitled to the benefits of the
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applicable Indenture enforceable against the Company in
accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles; if the Debt Securities are convertible into
Common Shares or other securities of the Company, the Common
Shares or other securities issuable upon such conversion
will have been duly authorized and reserved for issuance
upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid (assuming the underlying
Debt Securities have been paid for) and nonassessable; such
Common Shares or other securities will have been duly
authorized and issued, will be fully paid (assuming the
underlying Debt Securities have been paid for) and
nonassessable and will conform to the description thereof
contained in the Final Prospectus; and the stockholders of
the Company have no preemptive rights with respect to any of
such Common Shares or other securities issuable upon such
conversion.
(xv) In the case of an offering of Preferred Shares,
including any Preferred Shares constituting Option
Securities, the Preferred Shares being delivered and paid
for at such Closing Date have been duly authorized, validly
issued and are fully paid and nonassessable; the Contract
Securities, when issued, delivered and sold pursuant to the
Delayed Delivery Contracts, will be duly issued, fully paid
and nonassessable; the Contract Securities, when so issued,
delivered and sold, will conform, to the descriptions
thereof contained in the Final Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to any of such Preferred Shares. If the Preferred
Shares being delivered and paid for at such Closing Date are
convertible into Common Shares or other securities, such
Preferred Shares are, and the Contract Securities, when so
issued, delivered and sold, will be, convertible into Common
Shares or other securities of the Company in accordance with
their terms; the Common Shares or other securities initially
issuable upon conversion of such Preferred Shares will have
been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be
duly issued, fully paid (assuming the underlying Preferred
Shares have been paid for) and nonassessable; the Common
Shares have been duly authorized and issued, are fully paid
and nonassessable and conform to the description thereof
contained in the Final Prospectus.
(xvi) In the case of an offering of Depositary Shares,
including any Depositary Shares constituting Option
Securities, the Preferred Shares being delivered to the
Depositary and represented by the Depositary Shares at such
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Closing Date have been duly authorized; the Preferred Shares
delivered to the Depositary and represented by Depositary
Shares at such Closing Date, assuming that such Depositary
Shares have been issued, paid for and delivered to the
Depositary against delivery of depositary receipts
evidencing the applicable Depositary Shares to the
Underwriters, have been validly issued and are fully paid
and nonassessable; the Contract Securities, when issued,
delivered, paid for and sold pursuant to the Delayed
Delivery Contracts, will be duly issued, fully paid and
nonassessable; the Contract Securities, when so issued,
delivered and sold, will conform, to the descriptions
thereof contained in the Final Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to any of such Depositary Shares or the Preferred
Shares represented thereby. If Preferred Shares represented
by Depositary Shares being delivered at such Closing Date
are convertible into Common Shares or other securities, such
Preferred Shares are, and the Preferred Shares represented
by Depositary Shares constituting Contract Securities, when
so issued, delivered and sold, will be, convertible into
Common Shares or other securities of the Company in
accordance with their terms; the Common Shares initially
issuable upon conversion of Preferred Shares represented by
Depositary Shares will have been duly authorized and
reserved for issuance upon such conversion and, when issued
upon such conversion, will be duly issued, fully paid
(assuming the underlying Depositary Shares have been paid
for) and nonassessable; the Common Shares have been validly
authorized and issued, are fully paid and nonassessable and
conform to the description thereof contained in the Final
Prospectus.
(xvii) In the case of an offering of Depositary Shares,
assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary, the Deposit Agreement
has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by
general equitable principles; and the depositary receipts
when executed, delivered and paid for pursuant to the
Deposit Agreement upon deposit of the Preferred Shares
thereunder, will be validly issued and will entitle the
holders thereof to the rights in respect of the applicable
Depositary Shares specified therein and in the Deposit
Agreement.
(xviii) In the case of an offering of Common Shares,
including any Common Shares constituting Option Securities,
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the Common Shares being delivered and paid for at such
Closing Date have been duly authorized, validly issued and
are fully paid and nonassessable; the related Rights have
been duly authorized and validly issued under the Rights
Agreement and are entitled to the benefits thereof; the
Contract Securities, when issued, delivered and sold,
pursuant to the Delayed Delivery Contracts, will be duly
issued, fully paid and nonassessable; the Contract
Securities, when so issued, delivered and sold, will conform
to the description thereof contained in the Final
Prospectus; neither the issuance of the Common Shares nor
the issuance of the related Rights is subject to preemptive
rights; and the Company has reserved one one-hundredth share
of Series C Preferred for issuance upon exercise of each
Right.
(xix) In the case of an offering of Preferred Shares
Warrants and Common Shares Warrants, the applicable Warrant
Agreement has been duly authorized, executed and delivered
by the Company; and, assuming due authorization, execution
and delivery by the applicable Warrant Agent, the applicable
Warrant Agreement constitutes a valid and binding instrument
enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights
generally or by general equitable principles; the applicable
Warrants have been duly and validly authorized and, when
executed by the proper officers of the Company,
countersigned by the applicable Warrant Agent under the
applicable Warrant Agreement and in all cases delivered
pursuant to the applicable Warrant Agreement and delivered
to and paid for by the Underwriters pursuant to this
Agreement (or by the purchasers thereof pursuant to the
Delayed Delivery Contracts in the case of any Contract
Securities) will in each case constitute a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable
principles; and will be entitled to the benefits of the
applicable Warrant Agreement; and in the case of Preferred
Shares Warrants and Common Shares Warrants, the Preferred
Shares or Common Shares initially issuable upon the exercise
thereof have been duly and validly authorized and reserved
for issuance upon such exercise and such shares, when issued
upon such exercise in accordance with the terms of the
respective Warrant Agreement and at the prices therein
provided for, will be duly authorized, validly issued, fully
paid and nonassessable.
-26-
(xx) If the Securities being delivered on such Closing
Date are to be listed on any stock exchange, authorization
therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all
required supporting documents with respect to the Securities
with such stock exchange and such counsel has no reason to
believe that such Securities will not be authorized for
listing, subject to official notice of issuance and evidence
of satisfactory distribution.
(2) The favorable opinion, dated as of the
applicable Closing Date, of Ronald R. Snyder, Esq.,
Vice President, General Counsel and Secretary of the
Company, in form and substance satisfactory to counsel
for the Underwriters, to the effect that:
(i) To the best of his knowledge and information, the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one
enterprise.
(ii) To the best of his knowledge and information, each
Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own,
lease or operate its properties and to conduct its business
as described in the Registration Statement and the Final
Prospectus, and is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify would not in the aggregate
have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock
of each such Significant Subsidiary shown as owned by the
Company on Schedule A to this Agreement has been duly
authorized and validly issued, is fully paid and
nonassessable, and such interest is owned by the Company,
directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or
claim.
(iii) Nothing has come to such counsel's attention
that leads him to believe that the Registration Statement,
at the time it became effective or at the applicable Closing
Date, contained an untrue statement of a material fact or
-27-
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or
supplemented at the applicable Closing Date, included an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(iv) To the best of his knowledge and information, no
authorization, approval consent or order of any court or
governmental authority or agency is required in connection
with the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be
required under the Act, the rules and regulations
thereunder, the Exchange Act and the rules and regulations
thereunder or state securities laws and, in the case of an
offering of Debt Securities or Debt Warrants, the
qualification of the applicable Indenture under the Trust
Indenture Act.
(v) To the best of his knowledge and information,
except as described in the Registration Statement, at the
time it became effective or at the applicable Closing Date,
there is no action, suit or proceeding before or by any
court or governmental agency or body now pending or
threatened against or affecting the Company or any of its
subsidiaries in which it is probable that such action, suit
or proceeding, except in cases in which such consequences
are considered remote, will have any material adverse effect
on the condition, financial or otherwise, or in the
earnings, affairs, assets, properties or business prospects
of the Company and its subsidiaries considered as one
enterprise.
(vi) To the best of his knowledge and information, no
default exists in the due performance or observance of any
material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument described,
referred to, or filed or incorporated by reference in the
Registration Statement, at the time it became effective or
at the applicable Closing Date, or the Company's most recent
Annual Report on Form 10-K filed with the Commission under
the Exchange Act, which defaults in the aggregate are
material to the Company and its subsidiaries considered as
one enterprise.
(3) The favorable opinion or opinions, dated as
of the applicable Closing Date, of Mayer, Brown &
Platt, counsel for the Underwriters, with respect to
the incorporation of the Company, the validity of the
-28-
Securities being sold at the Closing Date, the
Registration Statement, the Final Prospectus and other
related matters as the Underwriters may reasonably
request, and such counsel shall have received such
papers and information as they reasonably request to
enable them to pass upon such matters. In giving their
opinion, Mayer, Brown & Platt may rely as to matters of
Indiana corporate law upon the opinion of Schiff Hardin
& Waite.
(c) At the applicable Closing Date there shall not have
been, since the date of this Agreement or since the respective
dates as of which information is given in the Registration
Statement and the Final Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of
the Company and of the Chief Financial Officer, Chief Accounting
Officer or Treasurer of the Company, dated as of such Closing
Date, to the effect that (i) there has been no such material
adverse change; (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as
though expressly made again at and as of such Closing Date; (iii)
the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior
to such Closing Date; and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened
by the Commission.
(d) The Representatives shall have received from Price
Waterhouse and any other independent certified public accountants
who have reviewed financial statements included in the
Registration Statement or the Final Prospectus letters, dated as
of the date of this Agreement and as of the applicable Closing
Date, in form and substance satisfactory to the Representatives
to the effect that:
(i) They are independent public accounts with respect
to the Company and its subsidiaries within the meaning of
the Act and the rules and regulations thereunder.
(ii) It is their opinion that the financial statements
and supporting schedules included or incorporated by
reference in the Registration Statement and covered by their
opinion therein comply as to form in all material respects
with the applicable accounting requirements of the Act, the
rules and regulations thereunder, the Exchange Act and the
rules and regulations thereunder.
-29-
(iii) Based upon limited procedures set forth in detail
in such letter, nothing has come to their attention which
causes them to believe that:
(A) The unaudited financial statements and
supporting schedules of the Company and its
subsidiaries included or incorporated by reference in
the Registration Statement and the Final Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of the Act, the
rules and regulations thereunder, the Exchange Act and
the rules and regulations thereunder or are not
presented in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(B) The amounts set forth under the caption
"Selected Financial Data" (or other similar caption) in
the Final Prospectus are not in agreement with the
corresponding amounts in the Company's audited
financial statements included or incorporated by
reference in the Registration Statement and the Final
Prospectus; or
(C) At a specified date not more than five days
prior to the date of the letters, there has been any
change in the capital stock of the Company or any
increase in the consolidated long-term debt of the
Company and its subsidiaries or any decrease in
consolidated net current assets or net assets as
compared with the amounts shown in the Company's most
recent consolidated balance sheet included or
incorporated by reference in the Registration Statement
and the Final Prospectus or, during the period from the
date of such balance sheet to a specified date not more
than five days prior to the date of the letters, there
were any decreases, as compared with the corresponding
period in the preceding year, in consolidated net
sales, net earnings or primary net earnings per share
of the Company and its subsidiaries, except in all
instances for changes, increases or decreases which the
Registration Statement and the Final Prospectus
disclose have occurred or may occur.
(iv) In addition to the examination referred to in
their opinions and the limited procedures referred to in
clause (iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which
are included or incorporated by reference in the
-30-
Registration Statement and Prospectus and which have been
specified by the Representatives, and have found such
amounts, percentages and financial information to be in
agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in
such letter.
(v) If pro forma financial statements are included or
incorporated in the Registration Statement and Final
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company
and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial
statements, nothing came to their attention which caused
them to believe that the pro forma financial statements do
not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not
been properly applied to the historical amounts in the
compilation of such statements.
(e) At the applicable Closing Time, 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 Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(f) If any of the Securities are to be listed on the New
York Stock Exchange, Inc. or any other national stock exchange,
such Securities shall have been duly listed, subject to notice of
issuance, on such stock exchange.
(g) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged
by Underwriters, and the parties to such Delayed Delivery
Contracts, have been approved by the Company.
If any condition specified in this Section shall not have
been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to the applicable Closing
Date, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
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SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act as follows:
(1) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto), including all documents incorporated by
reference therein, or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(2) 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, if such
settlement is effected with the written consent of the
Company; and
(3) against any and all expense whatsoever, as
incurred (including, subject to Section 7(c) hereof, the
fees and disbursements of counsel chosen by you) 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 (1) or
(2) above;
provided, however, that this indemnity shall not apply to any loss,
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 Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
(or any amendment or supplement thereto).
-32-
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act
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 Registration Statement (or any amendment thereto) or the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives expressly
for use in the Registration Statement (or any amendment thereto)
the Basic Prospectus, Preliminary Final Prospectus or the Final
Prospectus (or any amendment or supplement thereto).
(c) 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 which it
may have otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) separate from their
own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
SECTION 8. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 7 is for any reason held to be
unenforceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions that the Underwriters are responsible
for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Final Prospectus bears to
the initial public offering price of the Securities appearing thereon
and the Company is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the
Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
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signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act shall
have the same rights to contribution as the Company.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers
of the Company submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any
Underwriter or any controlling person, or by or on behalf of the
Company, and shall survive delivery of any Securities to the
Underwriters.
SECTION 10. Termination. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to
the applicable Closing Date (i) if there has been, since the date of
this Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak
or escalation of hostilities or other calamity or crisis, the effect
of which is such as to make it, in the Representatives' sole judgment,
impracticable to market the Securities or enforce contracts for the
sale of the Securities, or (iii) if trading in the Common Shares has
been suspended by the Commission, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared
by either Federal, New York, Indiana or Illinois authorities. In the
event of any such termination, such termination shall be without
liability of any party to any other party except as provided in
Section 5. Notwithstanding any such termination, the provisions of
Sections 7 and 8 shall remain in effect.
SECTION 11. Default. If one or more of the Underwriters shall
fail at the applicable Closing Date to purchase the Securities which
it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, 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 Representatives shall not have completed such
arrangements within such 24-hour period, then:
-34-
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount
of the Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective
underwriting obligations under this Agreement bear to the
underwriting obligations of all such non-defaulting Underwriters,
or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of the
Securities to be purchased pursuant to this Agreement, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of any default of
such Underwriter under the applicable Terms Agreement or this
Agreement.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the
Company shall have the right to postpone the applicable Closing Date
for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Final Prospectus, or in any
other documents or arrangements.
SECTION 12. 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 Underwriters shall be directed to
____________________________________________________________,
Attention: ____________________. Notices to the Company shall be
directed to it at One Noblitt Plaza, Post Office Box 3000, Columbus,
Indiana 47202, Attention: Ronald R. Snyder, Esq., Vice President,
General Counsel and Secretary, with a copy to Schiff Hardin & Waite,
7200 Sears Tower, Chicago, Illinois 60606, Attention: Frederick L.
Hartmann, Esq.
SECTION 13. Parties. This Agreement shall inure to the
benefit of and be binding upon the Underwriters 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 parties hereto 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 parties and their
respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the
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benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. Governing Law and Time. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day
refer to New York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
Arvin Industries, Inc.
By: Name:_________________________
Title:________________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
[Name, address and signature block
for Underwriters or Representatives.]
For themselves and the other several
Underwriters, if any, named in
Schedule II to the foregoing Agreement.
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Schedule A
Jurisdiction
Subsidiary Name of Organization
Maremont Corporation Delaware
Arvin International Holding, Inc. Indiana
Roll Coater, Inc. Indiana
Arvin Cheswick B.V. The Netherlands
Arvin International U.K., plc United Kingdom
Arvin Ride Control Products, Inc. Canada
Arvin Cheswick International B.V. The Netherlands
SCHEDULE I
Debt Securities
Debt Warrants
Underwriting Agreement dated
Trustee:
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Interest rate:
Interest payable:
Commencing:
Date of maturity:
Public offering price:
Purchase price:
Form of payment:
Form of Securities:
Redemption provisions:
Sinking fund requirements:
Lockup provisions:
Convertibility into other Securities:
Other provisions:
Other Provisions of or Amendments to Underwriting Agreement:
Description of Debt Warrants:
Title of Debt Warrant Agreement:
Debt Warrant Agent:
I-1
Debt Warrant exercise price and currency:
Principal amount and currency of Debt Warrant:
Securities issuable upon exercise of one Debt Warrant:
Date after which Debt Warrants may be exercised:
Expiration date:
Detachable date (if applicable):
Description of Debt Warrant Securities:
Title:
Trustee:
Principal amount and currency:
Purchase price and currency:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangement:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-2
PREFERRED SHARES
Underwriting Agreement dated
Designation, Purchase Price and Description of Preferred Shares:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued
dividends, if any):
Other provisions:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Deposit Agreement: Terms and Conditions
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Convertibility into Common Stock or other securities:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-3
DEPOSITARY SHARES REPRESENTING PREFERRED SHARES
Underwriting Agreement dated
Designation, Purchase Price and Description of Preferred Shares:
Designation:
Liquidation preference per share:
Number of shares:
Purchase price per share (include accrued
dividends, if any):
Other provisions:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-4
PREFERRED SHARES WARRANTS
Number of Preferred Shares Warrants to be issued:
Warrant Agreement:
Form of Preferred Shares Warrants: [Registered] [Bearer]
Issuable jointly with other Securities: [Yes] [No]
[Number of Preferred Shares Warrants issued with each ________
amount or $__________ principal amount of other Securities]
[Detachable Date:]
Date from which Preferred Shares Warrants are exercisable:
Date on which Preferred Shares Warrants expire:
Exercise price(s) of Preferred Shares Warrants:
Public offering price: $______________
Purchase price: $______________
Title and terms of Preferred Shares:
Principal Amount of Preferred Shares purchasable upon exercise of one
Warrant:
Other Provisions of or Amendments to the Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
I-5
COMMON SHARES
Underwriting Agreement dated
Number of shares:
Purchase price per share:
Over-allotment option:
Other Provisions of or Amendments to Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum principal amount of each contract:
Modification of items to be covered by the letter from Price
Waterhouse delivered pursuant to Section 6(d) at the Closing Date:
I-6
COMMON SHARES WARRANTS
Number of Common Shares Warrants to be issued:
Warrant Agreement:
Form of Common Shares Warrants: [Registered] [Bearer]
Issuable jointly with other Securities: [Yes] [No]
[Number of Common Shares Warrants issued with each _______ amount
or $__________ principal amount of other Securities]
[Detachable Date:]
Date from which Common Shares Warrants are exercisable:
Date on which Common Shares Warrants expire:
Exercise price(s) of Common Shares Warrants:
Public offering price: $______________
Purchase price: $________________
Principal Amount of Common Shares purchasable upon exercise of one
Warrant:
Other Provisions of or Amendments to the Underwriting Agreement:
Purchased Securities Closing Date, Time and Location:
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
I-7
UNITS
Title and principal amount of Debt Securities or title and number of
Preferred Shares or Common Shares and title and number of Warrants
included in one Unit:
Purchase Price and currency:
Detachable Date:
Other provisions:
I-8
SCHEDULE II
Debt Securities/Debt Warrants
Firm Name $Amount<*>
------------- -------------------
Total ______________
$_____________
ALL OTHER SECURITIES
Firm Name Participation*
----------- -------------------
Total ______________
$______________
<*> If Option Securities are offered, should include the minimum and
maximum principal amount or number of shares of Securities, as
the case may be.
II-1
SCHEDULE III
FORM OF DELAYED DELIVERY CONTRACT
__________________, 19__
[Name and address of Underwriters
or Representatives]
Dear Sirs:
The undersigned hereby agrees to purchase from Arvin Industries,
Inc. (the "Company"), and the Company agrees to sell to the
undersigned, on ____________, 19__, (the "Delivery Date"),
____________ [aggregate principal amount] [number of
[shares][warrants]] of the Company's [title of securities] (the
"Securities") offered by the Company's Prospectus, dated
______________, 19__, and Prospectus Supplement, dated __________,
19__, receipt of a copy of which is hereby acknowledged, at a purchase
price of [____% of the] [principal amount thereof, plus accrued
interest (amortization of original issue discount), if any, thereon
from ___________, 19__ to the date of payment and delivery]
[liquidation preference thereof or shares represented thereby, plus
accrued dividends, if any, thereon from _____________, 19__ to the
date of payment and delivery] [_________ per Debt Warrant, Preferred
Shares Warrant or Common Shares Warrant] [$_____ per share], and on
the further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 A.M., New York City time, on the
Delivery Date to or upon the order of the Company by certified or
official bank check in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the
Company and the undersigned, upon delivery to the undersigned of the
Securities in definitive fully registered form [and in such authorized
denominations] and registered in such names [and for such number of
[shares] [warrants]] as the undersigned may request by written,
telegraphic or facsimile communication addressed to the Company not
less than five full business days prior to the Delivery Date. If no
request is received, the Securities will be registered in the name of
the undersigned and issued [for the total number of [shares]
[warrants]] [in a denomination equal to the aggregate principal amount
of Securities] to be purchased by the undersigned on the Delivery
Date.
II-1
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the
Company to sell and deliver Securities on the Delivery Date, shall be
subject to the conditions (and neither party shall incur any liability
by reason of the failure thereof) that (1) the purchase of Securities
to be made by the undersigned, which purchase the undersigned
represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before
the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such [number of [shares] [warrants]] [principal
amount] of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus
Supplement mentioned above. Promptly after completion of such sale to
the Underwriters, the Company will mail or deliver to the undersigned
at its address set forth below notice to such effect, accompanied by a
copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities,
and the obligation of the Company to cause the Securities to be sold
and delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Securities pursuant to
other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the
other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first come, first served
basis. If this contract is acceptable to the Company, it is required
that the Company sign the form of acceptance below and mail or deliver
one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company
and the undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
III-2
This agreement shall be governed by and construed in accordance
with the laws of the State of New York.
Very truly yours,
[Name of Purchaser]
By: ______________________
[Title of Officer]
[Address]
Accepted:
Arvin Industries, Inc.
By: ____________________________
[Authorized Signature]
III-3