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INGERSOLL-RAND COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
June, 1995
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 fifteenth 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 fifteenth 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 fifteenth business day after the Effective Date, or
(ii) if the date of the applicable Pricing Agreement is after the fifteenth
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business 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, subject to
bankruptcy, insolvency, reorganization and other similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
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(vi) The Indenture has been duly authorized,
executed and delivered by the parties thereto and constitutes a
valid and legally binding instrument, 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
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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 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;
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(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;
(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
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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 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
14
14
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, 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
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case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action).
(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
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Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. 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
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17
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 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
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18
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 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.
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19
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 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.
___________________________________
20
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.
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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
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SCHEDULE I
Principal Amount of
Designated Securities
to be
Underwriter Purchased
- ----------- ---------------------
[Names of Underwriters] . . . . . . . . . . . . . . . . . . . . . $
----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
----------
23
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
24
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 --
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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]: