INGERSOLL-RAND COMPANY
Debt Securities
Underwriting Agreement Standard Provisions
------------------------------------------
May, 1994
From time to time Ingersoll-Rand Company (the
"Company") proposes to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in Schedule I
to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement) certain of
its debt securities (the "Securities") specified in Schedule II
to such Pricing Agreement (the Securities so specified being
referred to herein as the "Designated Securities").
1. The terms and rights of the issuance of the
Designated Securities shall be specified in Schedule I to the
applicable Pricing Agreement and in or pursuant to the indenture
(the "Indenture") identified in such Pricing Agreement.
Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firm
or firms designated as representatives of the Underwriters of
such Securities in the Pricing Agreement relating thereto will
act as representative (the "Representative"). The term
"Representative" also refers to Underwriters who act without any
firm being designated as their representative. These
Underwriting Agreement Standard Provisions shall not be construed
as an obligation of the Company to sell any of the Securities or
as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any
of the Securities and the obligation of any of the Underwriters
to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the
purchase price to the Underwriters of such Designated Securities,
the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by
each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The
Pricing Agreement shall also specify (to the extent not set forth
in the Indenture and the registration statement and prospectus
with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an
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exchange of telegraphic communications or any other rapid
transmission device designated to produce a written record of
communications transmitted. The obligations of the Underwriters
under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement in respect of the
Securities and more particularly described in the applicable
Pricing Agreement has been filed with the Securities and Exchange
Commission (the "Commission") in the form heretofore delivered or
to be delivered to the Representative, and such registration
statement in such form has been declared effective by the
Commission and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement
being hereinafter called a "Preliminary Prospectus"; if any post-
effective amendment to such registration statement has been filed
with the Commission prior to the date of the applicable Pricing
Agreement, the most recent such amendment has been declared
effective by the Commission; "Effective Date" means the date as
of which such registration statement, or the most recent post-
effective amendment thereto, if any, was declared effective by
the Commission; such registration statement, as amended at the
Effective Date, including all material incorporated by reference
therein and, if the date of the Pricing Agreement is on or before
the fifth business day after the Effective Date, including all
information deemed to be a part thereof as of the Effective Date
pursuant to paragraph (b) of Rule 430A under the Securities Act
of 1933, as amended (the "Act"), is hereinafter referred to as
the "Registration Statement," and the form of prospectus relating
to the Designated Securities, as first filed pursuant to
paragraph (1) or (4) of Rule 424(b) ("Rule 424(b)") under the Act
or, if the date of the Pricing Agreement is after the fifth
business day after the Effective Date, pursuant to Rule 424(b)(2)
or (5), as such form of prospectus may be supplemented as
contemplated by Section 1 to reflect the terms of the Designated
Securities and the terms of offering thereof, including all
documents incorporated by reference therein, is hereinafter
referred to as the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be;
and any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and incorporated therein by reference);
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(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; any further documents so filed and
incorporated by reference in the Prospectus or in any amendments
or supplements thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder 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 not
misleading; provided, however, that this representation and
warranty shall apply only to documents so filed and incorporated
by reference during the period that a prospectus relating to the
Designated Securities is required to be delivered in connection
with sales of such Designated Securities (such period being
hereinafter sometimes referred to as the "prospectus delivery
period"); and provided further, however, that this representation
and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representative expressly for use in the Prospectus;
(c) The Registration Statement and the Prospectus
conform, and any amendments or supplements thereto will conform,
in all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations of the Commission
thereunder, and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus
and any supplement thereto, 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 not
misleading; provided, however, that this representation and
warranty shall apply only to amendments or supplements filed or
made during the prospectus delivery period; and provided further,
however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company
by an Underwriter through the Representative expressly for use in
the Prospectus;
(d) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, there
has not been any material adverse change or any development
involving a prospective material adverse change in or affecting
the business and operations, financial position, stockholders'
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equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company is duly incorporated and validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority
to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business under the laws of
each other jurisdiction in which the nature of the business it
transacts or the properties it owns requires such qualification
except where such failures to be so qualified would not,
individually or in the aggregate, have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(f) The Securities have been duly authorized, and,
when Designated Securities are issued and delivered pursuant to
this Agreement and duly authenticated by the Trustee in
accordance with the Indenture, such Designated Securities will
have been duly executed, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture; the Indenture, has been
duly authorized by the Company and is duly qualified under the
Trust Indenture Act and, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and to general equity
principles; and the Securities, the Designated Securities, and
the Indenture conform in all material respects to the
descriptions thereof in the Prospectus;
(g) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture and this Agreement, and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in
any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the Company or any
statute, order, rule or regulation (except for state securities
or Blue Sky laws, rules and regulations, as to which the Company
makes no representation) of any court or governmental agency or
body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Designated Securities or the consummation by the Company of
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the other transactions contemplated by the applicable Pricing
Agreement or the Indenture except such as have been, or will have
been prior to the Time of Delivery (as defined in Section 4
hereof), obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations and
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters; and
(h) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the best of the Company's knowledge, threatened to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is
the subject which individually or in the aggregate have a
reasonable possibility of having a material adverse effect on the
consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole.
3. Upon the execution of the applicable Pricing
Agreement and the authorization by the Representative of the
release of the Designated Securities, the several Underwriters
propose to offer such Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. Designated Securities to be purchased by each
Underwriter, in definitive form to the extent practicable, and in
such authorized denominations and registered in such names as the
Representative may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the
Company to the Representative for the accounts of the
Underwriters, against payment by such Underwriter or on its
behalf of the purchase price therefor in the manner and in the
funds specified in such Pricing Agreement, all at the place and
time and date specified in such Pricing Agreement or at such
other place and time and date as the Representative and the
Company may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Designated
Securities.
5. The Company agrees with each of the Underwriters of
any Designated Securities:
(a) To prepare the Prospectus as amended and
supplemented in relation to the applicable Designated Securities
in a form not disapproved by the Representative and to file such
Prospectus with the Commission (i) pursuant to Rule 424(b)(1)
(or, if applicable and if consented to by the Representatives,
pursuant to Rule 424(b)(4)) not later than the Commission's close
of business on the earlier of (A) the second business day
following the date of the applicable Pricing Agreement or (B) the
fifth business day after the Effective Date, or (ii) if the date
of the applicable Pricing Agreement is after the fifth business
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day after the Effective Date, pursuant to Rule 424(b)(2) (or, if
applicable and if consented to by the Representatives, pursuant
to Rule 424(b)(5)) not later than the second business day
following the date of the applicable Pricing Agreement; the
Company will advise you promptly of any such filing pursuant to
Rule 424(b); to advise the Representative promptly of any
amendment or supplement to the Registration Statement or
Prospectus after such Time of Delivery and during the prospectus
delivery period and furnish the Representative with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and
during the prospectus delivery period; and during such same
period to advise the Representative, promptly after it receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or become effective or any
supplement to the Prospectus or any amended Prospectus has been
filed, or mailed for filing, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use
of any prospectus relating to the Designated Securities, of the
suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of
any prospectus relating to the Designated Securities or
suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as
the Representative may reasonably request to qualify the
Designated Securities for offering and sale under the securities
laws of such jurisdictions as the Representative may request and
to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Designated
Securities, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus in such quantities as the Representative may from time
to time reasonably request, and, if the delivery of a prospectus
is required at any time prior to the expiration of nine months
after the time of issue of such Prospectus in connection with the
offering or sale of the Designated Securities and if at such time
any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
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delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representative and upon the request of the
Representative to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in
securities as many copies as the Representative may from time to
time reasonably request of an amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission
or effect such compliance; and in case any Underwriter is
required to deliver a prospectus in connection with sales of any
of such Designated Securities at any time nine months or more
after the time of issue of the Prospectus, upon the request of
the Representative but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as the
Representative may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its security
holders as soon as practicable an earnings statement of the
Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the
option of the Company, Rule 158); and
(e) During the period beginning from the date of the
applicable Pricing Agreement and continuing to and including the
earlier of (i) the termination of trading restrictions for the
Designated Securities, as notified to the Company by the
Representative and (ii) the Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of
the Company which mature more than one year after such Time of
Delivery and which are substantially similar to the Designated
Securities, without the prior written consent of the
Representative.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the
registration of the Designated Securities under the Act and all
other expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements (except as
expressly provided in the last clause of Section 5(c) hereof)
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment
Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the
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qualification of the Designated Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv)
any fees charged by securities rating services for rating the
Designated Securities; (v) any filing fees incident to any
required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Designated
Securities; (vi) the cost of preparing the Designated Securities;
(vii) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee
in connection with any Indenture and the Designated Securities;
and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, Section 5(c),
Section 8 and Section 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any
Designated Securities specified in the applicable Pricing
Agreement shall be subject, in the discretion of the
Representative, to the accuracy of the representations and
warranties and other statements of the Company herein, at and as
of the Time of Delivery, the performance by the Company of all of
its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 5(a) of the
Agreement; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with;
(b) Simpson Thacher & Bartlett, counsel for the
Underwriters, shall have furnished to the Representative such
opinion or opinions, dated the Time of Delivery, with respect to
the incorporation of the Company, the validity of the Indenture,
the Designated Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters
as the Representative may reasonably request, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Patricia Nachtigal, Esq., Vice President and
General Counsel of the Company, shall have furnished to the
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Representative her written opinion, dated the Time of Delivery,
to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing as a corporation
under the laws of the State of New Jersey, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) The Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such
qualification except where such failures to be so
qualified or be in good standing would not,
individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries
taken as a whole (such counsel being entitled to rely
in respect of the opinion in this clause upon
certificates of state officials, provided that such
counsel shall state that she believes that both the
Representative and she are justified in relying upon
such certificates);
(iii) To the best of such counsel's knowledge there
are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its
subsidiaries is the subject, other than as set forth in
the Prospectus and other than litigation incident to
the kind of business conducted by the Company and its
subsidiaries which individually and in the aggregate is
not material to the Company and its subsidiaries taken
as a whole; and to the best of such counsel's knowledge
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(v) The Designated Securities have been duly
authorized, executed, authenticated, issued and
delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture; and the Designated
Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or
supplemented;
(vi) The Indenture has been duly authorized,
executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument,
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enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency,
reorganization and other similar laws of general
applicability relating to or affecting creditors'
rights and to general equity principles; and the
Indenture has been duly qualified under the Trust
Indenture Act;
(vii) The issue and sale of the Designated
Securities and the compliance by the Company with all
of the provisions of the Designated Securities, the
Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or
constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon
any of the property or assets of the Company pursuant
to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument
which is material to the Company and its subsidiaries
taken as a whole and is known to such counsel to which
the Company is a party or by which the Company is bound
or to which any of the property or assets of the
Company or any of its significant subsidiaries is
subject, nor will such action result in any violation
of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the
Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or
any of its properties; and no consent, approval,
authorization, order, registration or qualification of
or with any such court or any such regulatory authority
or other governmental agency or body is required for
the issue and sale of the Designated Securities or the
consummation of the other transactions contemplated by
this Agreement or such Pricing Agreement or the
Indenture, except such as have been obtained under the
Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities
by the Underwriters;
(viii) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than
the financial statements and related schedules therein,
as to which such counsel need express no opinion), when
they became effective or were filed with the
Commission, as the case may be, complied as to form in
all material respects with the requirements of the Act
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or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such
documents, when they became effective or were so filed,
as the case may be, contained, in the case of a
registration statement which became effective under the
Act, an untrue statement of a material fact or omitted
to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, and, in the case of other documents which
were filed under the Act or the Exchange Act with the
Commission, 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 when such
documents were so filed, not misleading; and
(ix) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments
and supplements thereto made by the Company prior to
the Time of Delivery for the Designated Securities
(other than the financial statements and related
schedules therein, as to which such counsel need
express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
such counsel has no reason to believe that, as of the
effective date of the Registration Statement, either
the Registration Statement or the Prospectus (or, as of
its date, any further amendment or supplement thereto
made by the Company prior to the Time of Delivery)
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, as of the Time of Delivery, either
the Registration Statement or the Prospectus (or any
such further amendment or supplement thereto) contains
an untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not
misleading; and such counsel does not know of any
contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as
required;
(d) The Trustee shall have furnished to the
Representative a certificate, dated the Time of Delivery, as to
its due authorization, execution and delivery of the Indenture
and its due authentication of the Designated Securities;
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(e) At the Time of Delivery, the independent
accountants who have certified the financial statements of the
Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to
the Representative a letter, dated the Time of Delivery, of the
type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 49 covering such
matters as the Representative may reasonably request and in form
and substance satisfactory to the Representative;
(f) Since the effective date of the Registration
Statement (or any post-effective amendment thereto) no event
shall have occurred which should have been set forth in an
amendment to the Registration Statement or a supplement to the
Prospectus but which has not been so set forth, and since the
respective dates as of which information is given in the
Prospectus there shall not have been any change or any
development involving a prospective change in or affecting the
business and operations, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries
taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which is in the reasonable judgment
of the Representative so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in
the manner contemplated in the Prospectus;
(g) Subsequent to the date of the applicable Pricing
Agreement there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, Inc.; (ii) a general
moratorium on commercial banking activities in New York declared
by either Federal or New York State authorities; or (iii) the
outbreak or material escalation of hostilities involving the
United States or the declaration, on or after the date hereof, by
the United States of a national emergency or war if the effect of
any such event specified in this clause (iii) in the reasonable
judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery
of the Designated Securities on the terms and in the manner
contemplated in the Prospectus;
(h) The Company shall have furnished or caused to be
furnished to the Representative at the Time of Delivery a
certificate or certificates of officers of the Company as to the
accuracy of the representations and warranties of the Company
herein at and as of the Time of Delivery, as to the performance
by the Company of all of its obligations hereunder to be
performed at or prior to the Time of Delivery, and as to the
matters set forth in subsections (a) and (f) of this Section; and
(i) Subsequent to the execution of the applicable
Pricing Agreement, there shall not have been any decrease in the
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ratings of any of the Company's debt securities by Moody's
Investors Service, Inc. or Standard & Poor's Corporation.
8. (a) The Company will indemnify and hold harmless
each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus or any other
prospectus relating to the Designated Securities, or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending
any such action or claim; provided, however, that the Company
shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement,
the Prospectus or any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly
for use in the Prospectus relating to such Designated Securities;
provided further, however, that the foregoing indemnity with
respect to preliminary prospectuses shall not inure to the
benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Designated
Securities if such untrue statement or omission made in any
preliminary prospectus is eliminated or remedied in the
Prospectus relating to such Securities and if a copy of the
Prospectus relating to such Securities (excluding documents
incorporated by reference) has not been sent or given to such
person at or prior to the written confirmation of the sale of
such Securities to such person.
(b) Each Underwriter will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus
or any other prospectus relating to the Designated Securities, or
any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
14
statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus or any other
prospectus relating to the Designated Securities, or any
amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by
such Underwriter through the Representative expressly for use
therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, provided, however, that
-------- -------
if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall
have been advised by its counsel that representation of such
indemnified party and the indemnifying party by the same counsel
would be inappropriate (whether or not such representation by the
same counsel has been proposed) under applicable standards of
professional conduct due to actual or potential differing
interests between them, the indemnified party or parties shall
have the right to select separate counsel or participate in the
defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to
such indemnified party of its election so to assume the defense
of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection
with the defense thereof unless the indemnified party shall have
employed separate counsel in accordance with the proviso to the
next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more
than one separate counsel, approved by the Representative in the
case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to
such action).
15
(d) If the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other from
the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Designated
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
16
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The obligations of the
Underwriters in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with
respect to such Securities and not joint.
(e) The obligations of the Company under this Section
8 shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions to each
officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligations to purchase the Designated Securities which it has
agreed to purchase under the Pricing Agreement, the
Representative may in its discretion arrange for any Underwriter
or Underwriters or another party or other parties to purchase
such Designated Securities on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the
Representative does not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representative
to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the
Representative notifies the Company that it has so arranged for
the purchase of such Designated Securities, or the Company
notifies the Representative that it has so arranged for the
purchase of such Designated Securities, the Representative or the
Company shall have the right to postpone the Time of Delivery for
a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which
in the opinion of the Representative may thereby be made
necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like
effect as if such person had originally been a party to the
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangement for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by the Representative and the Company as provided
in subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed
one-tenth of the aggregate principal amount of all the Designated
17
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the
principal amount of such Designated Securities which such
Underwriter agreed to purchase hereunder) of the Designated
Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for
the purchase of the Designated Securities of a defaulting
Underwriter or Underwriters by the Representative and the Company
as provided in subsection (a) above, the aggregate principal
amount of Designated Securities which remains unpurchased exceeds
one-tenth of the aggregate principal amount of Designated
Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, warranties
and other statements of the Company and the several Underwriters,
as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for the
Designated Securities.
Anything herein to the contrary notwithstanding, the
indemnity agreement of the Company in subsection (a) of Section 8
hereof, the representations and warranties in subsections (b) and
(c) of Section 2 hereof and any representation or warranty as to
the accuracy of the Registration Statement or the Prospectus
contained in any certificate furnished by the Company pursuant to
Section 7 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the
Company of expenses incurred or paid in the successful defense of
any action, suit or proceeding) arising under the Act, shall not
extend to the extent of any interest therein of a controlling
person or partner of an Underwriter who is a director, officer or
controlling person of the Company when the Registration Statement
has become effective (or when any amendment thereto made by the
18
Company becomes effective) or who, with his consent, is named in
the Registration Statement as about to become a director of the
Company, except in each case to the extent that an interest of
such character shall have been determined by a court of
appropriate jurisdiction as not against public policy as
expressed in the Act. Unless in the opinion of counsel for the
Company the matter has been settled by controlling precedent, the
Company will, if a claim for such indemnification is asserted,
submit to a court of appropriate jurisdiction the question
whether such interest is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
11. If the applicable Pricing Agreement shall be
terminated pursuant to Section 9 hereof, the Company shall not
then be under any liability to any Underwriter with respect to
the Designated Securities except as provided in Section 6 and
Section 8 hereof; but if for any other reason Designated
Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters
through the Representative for all out-of-pocket expenses
approved in writing by the Representative, including fees and
disbursements of counsel, reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of
such Designated Securities, but the Company shall then be under
no further liability to any Underwriter with respect to such
Designated Securities except as provided in Section 6 and Section
8 hereof.
12. In all dealings hereunder, the Representative
shall act on behalf of each of the Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or
given by the Representative.
All statements, requests, notices and agreements
hereunder shall be in writing or by telegram if promptly
confirmed in writing, and if to the Underwriters shall be
sufficient in all respects if delivered or sent by registered
mail to the address of the Representative as set forth in the
applicable Pricing Agreement; and if to the Company shall be
sufficient in all respects if delivered or sent by registered
mail to the address of the Company set forth in the Registration
Statement, Attention: Vice President and Treasurer, with a copy
to: Vice President and General Counsel; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof
shall be delivered or sent by registered mail to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address has been
supplied to the Company by the Representative.
13. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Section 8 and Section 10 hereof, the
19
officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Securities from
any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence in connection with
each Pricing Agreement.
15. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York applicable
to contracts made and to be performed therein.
16. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute
one and the same instrument.
---------------------------
ANNEX I
Form of Pricing Agreement
-------------------------
[INSERT NAME],
As Representatives of the several
Underwriters named in Schedule I hereto,
[Insert Address]
, 199_
----------
Dear Sirs:
Ingersoll-Rand Company (the "Company") proposes,
subject to the terms and conditions stated herein and in the
Underwriting Agreement Standard Provisions filed as an exhibit to
the Company's registration statement on Form S-3 (No. 33- )
(the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the
Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein;
and each of the representations and warranties set forth therein
shall be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and warranty
with respect to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as
of the date of the Underwriting Agreement in relation to the
Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to
the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in
the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of
the Underwriters of the Designated Securities pursuant to Section
12 of the Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a
supplement to the Prospectus, as the case may be, relating to the
Designated Securities, in the form heretofore delivered to you is
now proposed to be filed with the Commission.
2
Subject to the terms and conditions set forth herein
and in the Underwriting Agreement incorporated herein by
reference, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities
set forth opposite the name of such Underwriter in Schedule I
hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us two counterparts
hereof, and upon acceptance hereof by you, on behalf of each of
the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Company. It
is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon
request, but without warranty on the part of the Representatives
as to the authority of the signers thereof.
Very truly yours,
INGERSOLL-RAND COMPANY
By:__________________________
Accepted as of the date hereof:
[Insert Name]
By:___________________________
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be
----------- ----------
Purchased
------------
[Names of Underwriters] . . . . . . . . $
__________
Total . . . . . . . . . . . . . . . . . $__________
----------
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[U.S.] $
Price to Public:
% of the principal amount of the Designated Securities,
plus accrued interest, if any, from to [and
accrued amortization, if any, from to
]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities,
plus accrued interest, if any, from to [and
accrued amortization, if any, from to
]
Method and Specified funds for payment of purchase price:
[same day] [next day] funds; [certificated]
[book-entry] form
Indenture:
Indenture, dated as of , between the Company and
, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than
through the sinking fund, in whole or in part at the option
of the Company, in the amount of $ or an integral
multiple thereof,
[on or after , at the following
2
redemption price (expressed in percentages of principal
amount).] If [redeemed on or before , %,
and if] redeemed during the 12-month period beginning
Redemption
Year Price
---- -------------
and thereafter at 100% of their principal amount, together
in each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption
price equal to the principal amount thereof, plus accrued
interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption
for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire $ principal amount of
Designated Securities on in each of the years
through at 100% of their principal amount plus
accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company
to retire an additional $ principal amount of
Designated Securities in the years through at
100% of their principal amount plus accrued interest].
[If Securities are extendable debt Securities, insert --
Extendable provisions:
Securities are repayable on , [insert date
and years], at the option of the holder, at their principal
amount with accrued interest. Initial annual interest rate
will be %, and thereafter annual interest rate will be
adjusted on , and to a rate not
less than % of the effective annual interest rate on
U.S. Treasury obligations with -year maturities as of
the [insert date 15 days prior to maturity date] prior to
such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert --
3
Floating rate provisions:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
, and ] [to an annual rate of % above the
average rate for -year [month] [securities]
[certificates of deposit] by and [insert names of
banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent
of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) then current
weekly average per annum secondary market yield for -
month certificates of deposit over (ii) then current
interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills);
[from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest
Differential].]
Time of Delivery:
Closing Location:
Name and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]: