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Exhibit (1)
TRINOVA CORPORATION
$100,000,000
7-7/8% DEBENTURES DUE JUNE 1, 2026
UNDERWRITING AGREEMENT
May 29, 1996
MORGAN STANLEY & CO. INCORPORATED
J.P. MORGAN SECURITIES INC.
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Dear Sirs:
TRINOVA Corporation, an Ohio corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $100,000,000 principal amount of its 7-7/8% Debentures Due June
1, 2026 (the "Securities"), to be issued under an indenture dated as of May 1,
1996 (the "Indenture") between the Company and NBD Bank, as trustee (the
"Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (file number 333-1709), relating to certain debt
securities (the "Shelf Securities") to be issued from time to time by the
Company in accordance with Rule 415 under the Securities Act. The Company also
has filed with, or proposes to file with, the Commission
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pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The aforementioned registration
statement, as amended to the date of this Agreement, including the registration
statement of the Company on Form S-3 (file number 33-9127), as amended, are
hereinafter referred to collectively as the "Registration Statement"; and the
related prospectus covering the Shelf Securities dated March 20, 1996 is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement dated May 29, 1996 specifically
relating to the Securities in the form first used to confirm sales of the
Securities is hereinafter referred to as the "Prospectus". Any reference in this
Agreement to the Registration Statement, the Basic Prospectus, any preliminary
form of Prospectus (a "preliminary prospectus") previously filed with the
Commission pursuant to Rule 424, or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act which were filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Exchange Act") on or before the date
of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule I hereto at a purchase price of 7-7/8% of the
principal amount thereof, plus accrued interest, if any, from June 1, 1996 to
the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to make a
public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company
or to its order by certified or official bank check or checks
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payable in, or by wire transfer of, immediately available funds at 10:00 A.M.,
New York City time, on the third (fourth if the pricing occurs after 4:30 P.M.,
New York City time) business day after the date of this Agreement at the offices
of Brown & Wood, One World Trade Center, New York, New York 10048 (or at such
other time and place on the same or such other date, not later than the tenth
Business Day thereafter, as the Underwriters and the Company may agree in
writing). Such payment will be made upon delivery to The Depository Trust
Company of the Global Security (as defined in the Prospectus) representing the
Securities registered in the name of The Depository Trust Company's nominee,
Cede & Co. The time and date of such payment and delivery with respect to the
Securities are referred to herein as the "Closing Date".
4. The Company represents and warrants to each Underwriter
that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the Registration
Statement (as amended if the Company shall have filed any amendments
thereto) complies, or will comply, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"), and does not and will not, as of the applicable
effective date, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Prospectus, as
amended or supplemented at the Closing Date, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; except
that the foregoing representations and warranties shall not apply to
(i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter expressly for use therein;
(b) the documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
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conformed in all material respects to the requirements of the Exchange
Act, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and, for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Securities, any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission, will conform in all material respects to the requirements
of the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(c) the financial statements, and the related notes thereto
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change, or any development involving a prospective change,
which could reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management, 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; and except as set forth or contemplated
in the Prospectus neither the Company nor any of its subsidiaries has,
since January 1, 1996, entered into any transaction or agreement
(whether or not in the ordinary course of business) material to the
Company and its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified
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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, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) each of Aeroquip Corporation and Vickers, Incorporated
(collectively, the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties
and to conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole; and all of the
outstanding shares of capital stock of each Subsidiary have been duly
authorized and validly issued, are fully-paid and non-assessable, and
are owned by the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, except as rights to indemnity and
contribution hereunder may be limited by applicable law;
(h) the Securities have been duly authorized by the Company,
and, when issued, delivered and authenticated pursuant to this
Agreement and the Indenture, will have been duly executed, issued and
delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company, qualified under the Trust Indenture Act and constitutes a
valid and binding instrument of the Company; and the Securities and the
Indenture conform to the descriptions thereof in the Prospectus;
(i) neither the Company nor either Subsidiary is, or with the
giving of notice or the lapse of time or both would be, in violation of
or in default under its Articles of Incorporation or its Code of
Regulations or any indenture, mortgage, deed of trust, loan agreement
or other agreement
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or instrument to which the Company or either of the Subsidiaries is a
party or by which it or any of them or any of their respective
properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and
the Subsidiaries taken as a whole or to the holders of the Securities;
the issue and sale of the Securities and the performance by the Company
of all of its obligations under the 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 material agreement or
instrument to which the Company or either of the Subsidiaries is a
party or by which the Company or either of the Subsidiaries is bound or
to which any of the property or assets of the Company or either of the
Subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Articles of Incorporation or the
Code of Regulations of the Company or either of the Subsidiaries or any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company,
the Subsidiaries or any of their respective 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 Securities or the consummation by the Company of
the transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and the
Trust Indenture Act and as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters; and
(j) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or either of
the Subsidiaries is or may be a party or to which any property of the
Company or either of the Subsidiaries is or may be subject which could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and the Subsidiaries taken as a whole and, to
the best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by others;
and there are no contracts or other documents of a
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character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed or described as required.
5. The Company covenants and agrees with each Underwriter
as follows:
(a) to file the Prospectus in a form approved by the
Underwriters pursuant to Rule 424 under the Securities Act not later
than the Commission's close of business on the second Business Day
following the date of determination of the offering price of the
Securities;
(b) to deliver to each Underwriter and counsel for the
Underwriters, at the expense of the Company, a copy of the Registration
Statement (as originally filed) and each amendment thereto, in each
case including exhibits and documents incorporated by reference therein
and, during the period mentioned in paragraph (e) below, to deliver to
each Underwriter as many copies of the Prospectus (including all
amendments and supplements thereto) and documents incorporated by
reference therein as the Underwriters may reasonably request;
(c) from the date hereof and prior to the Closing Date, to
furnish to the Underwriters a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus, for their
review, and not to file any such proposed amendment or supplement to
which the Underwriters reasonably object;
(d) 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 for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise the Underwriters promptly, and to confirm such
advice in writing, (i) when any amendment to the Registration Statement
shall have become effective, (ii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the receipt
by the Company of any notification with respect to any suspension of
the qualification of the Securities for offer and sale in any
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jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary, in the
opinion of counsel for the Company or counsel for the Underwriters, to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary, in the opinion of counsel for the Company or counsel for the
Underwriters, to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses the
Underwriters will furnish to the Company) to which Securities may have
been sold by the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may, in the opinion
of counsel for the Company or counsel for the Underwriters, be
necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Securities and to pay all fees and expenses (including fees and
disbursements of counsel for the Underwriters) reasonably incurred in
connection with such qualification and in connection with the
determination of the eligibility of the Securities for investment under
the laws of such jurisdictions as the Underwriters may designate;
PROVIDED that the Company shall not be required to file a general
consent to service of process in any jurisdiction;
(g) to make generally available to its security holders and to
the Underwriters as soon as practicable an earnings statement covering
a period of at least twelve months beginning with the first fiscal
quarter of the
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Company occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(h) so long as the Securities are outstanding, to furnish to
the Underwriters copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national or international securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are substantially
similar to the Securities without the prior written consent of the
Underwriters; and
(j) to pay all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred pursuant to Section 5(f) of this Agreement,
(iv) in connection with the listing of the Securities on any stock
exchange, (v) related to any filings with the National Association of
Securities Dealers, Inc., (vi) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental Blue Sky
Memoranda and any Legal Investment Survey and the furnishing to the
Underwriters and dealers of copies of the Registration Statement and
the Prospectus, including mailing and shipping, as herein provided and
(vii) payable to rating agencies in connection with the rating of the
Securities.
6. The several obligations of the Underwriters hereunder
shall be subject to the following conditions:
(a) the representations and warranties of the Company
contained herein shall be true and correct on and as of the Closing
Date as if made on and as of the Closing Date and the Company shall
have complied with all agreements and
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satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 under the Securities Act within the applicable
time period prescribed for such filing by the Securities Act; no stop
order suspending the effectiveness of the Registration Statement shall
be in effect, and no proceedings for such purpose shall be pending
before or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to the satisfaction of the Underwriters;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities
of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(d) 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 change, which could reasonably be expected to
have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and the Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to them to the effect set forth in subsections (a) through
(c) of this Section and to the further effect that there has not
occurred any change, or any development involving a change, which could
reasonably be expected to have a material adverse effect on the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole from that set forth or contemplated in
the Prospectus or setting forth any such change or development in
reasonable detail;
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(f) James E. Kline, General Counsel of the Company, shall have
furnished to the Underwriters his written opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters, to the
effect that:
(i) the Company has been duly incorporated and is
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 to conduct its
business as described in the Prospectus as then amended or
supplemented;
(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, other than where the failure to be
so qualified or in good standing would not have a material
adverse effect on the Company and the Subsidiaries taken as a
whole;
(iii) each Subsidiary has been duly incorporated and is
validly existing as a corporation under the law of its
jurisdiction of incorporation with corporate power and
authority to own its properties and to conduct its business as
described in the Prospectus and 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, other than where the
failure to be so qualified and in good standing would not have
a material adverse effect on the Company and the Subsidiaries
taken as a whole; and all of the issued shares of capital
stock of each Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iv) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge,
threatened to which the Company or either of the Subsidiaries
is or may be a party or to which any property of the Company
or the Subsidiaries is or may be the subject which could
individually or in the aggregate reasonably be expected to
have a material adverse effect on the general affairs,
business,
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prospects, management, financial position, stockholders'
equity or results of operations of the Company and the
Subsidiaries taken as a whole; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; 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 described in the
Registration Statement or the Prospectus which are not filed
or described as required;
(v) neither the Company nor either of the Subsidiaries is,
or with the giving of notice or the lapse of time or both
would be, in violation of its Articles of Incorporation or its
Code of Regulations, except for violations which individually
or in the aggregate could not reasonably be expected to have a
material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders'
equity or results of operations of the Company and the
Subsidiaries taken as a whole, and the issue and sale of the
Securities and the performance by the Company of its
obligations under the 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 material agreement or instrument known to
such counsel to which the Company or either of the
Subsidiaries is a party or by which the Company or either of
the Subsidiaries is bound or to which any of the property or
assets of the Company or either of the Subsidiaries is
subject, nor will any such action result in any violation of
the provisions of the Articles of Incorporation or the Code of
Regulations of the Company or either of the Subsidiaries or
any applicable law or statute (except as rights to indemnity
and contribution hereunder may be limited by applicable law)
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, the
Subsidiaries or any of their respective properties;
(vi) the statements incorporated by reference in the
Prospectus from Item 3 of Part 1 of the Company's Annual
Report on Form 10-K for the fiscal year ended December 31,
1995 and in the Registration Statement in Item 15, in so far
as such statements constitute a
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summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents or proceedings;
and
(vii) (A) such counsel is of the opinion that the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1995 (except for the financial statements and supporting
schedules included therein as to which such counsel need
express no opinion) and any other document filed thereafter
and incorporated by reference into the Registration Statement
and the Prospectus complied as to form when filed with the
Commission in all material respects with the Exchange Act, (B)
such counsel is of the opinion that the Registration Statement
and the Prospectus and any amendments and supplements thereto
(except for the financial statements and supporting schedules
included therein and that part of the Registration Statement
which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture
Act, (C) nothing has come to the attention of such counsel to
cause him to believe that (except for the financial statements
and supporting schedules included therein and that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee as to which such counsel need
express no belief) the Registration Statement, on the date of
this Agreement, 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 (D) nothing has come to the attention of such
counsel to cause him to believe that the Prospectus (except
for the financial statements and supporting schedules included
therein as to which such counsel need express no belief) as
amended or supplemented, if applicable, to the Closing Date
contains an untrue statement of a material fact or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(g) Jones, Day, Reavis & Pogue, counsel for the
Company, shall have furnished to the Underwriters, their
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written opinion, dated the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding obligation
of the Company, except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(ii) the Securities have been duly authorized, executed
and delivered by the Company, and, when duly authenticated in
accordance with the terms of the Indenture and delivered to
and paid for by the Underwriters in accordance with the terms
of this Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits provided
by the Indenture;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust
Indenture Act and constitutes a valid and binding instrument
of the Company;
(iv) no consent, approval or authorization or order of any
governmental agency or body is required for the issue and sale
of the Securities, except such as have been obtained under the
Securities Act and the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(v) the statements in the Prospectus under the captions
"Description of Debentures" and "Description of Securities",
insofar as such statements purport to summarize the provisions
of the documents referred to therein, present fair summaries
of such provisions; and
(vi) (A) such counsel is of the opinion that the
Registration Statement and the Prospectus and any amendments
and supplements thereto (except for the financial statements
and supporting schedules included therein and that part of the
Registration Statement which constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee as to which such counsel need
express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Trust
Indenture Act, (B) no facts have come to the
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attention of such counsel to cause them to believe that
(except for the financial statements and supporting schedules
included therein and that part of the Registration Statement
which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee as to which such counsel need express no belief) the
Registration Statement, on the date of this Agreement,
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
(C) no facts have come to the attention of such counsel to
cause them to believe that the Prospectus (except for the
financial statements and supporting schedules included therein
as to which counsel need express no belief) as amended or
supplemented, if applicable, to the Closing Date contains an
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws
of the United States and the States of Ohio and Delaware, to
the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable
to the Underwriters' counsel, familiar with the applicable
laws; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers
of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents
respecting the corporate existence or good standing of the
Company. The opinions of such counsel for the Company shall
state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion,
he or they, as the case may be, and the Underwriters are
justified in relying thereon. With respect to the matters to
be covered in subparagraph (f)(vii) and (g)(vi) above, James
E. Kline and Jones, Day, Reavis & Pogue may state that their
opinions and beliefs are based upon their participation in the
preparation of the Prospectus and any amendment or supplement
thereto and review and discussion of the contents of the
Registration Statement and the Prospectus and that, except as
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specified, they have not independently verified and are not
passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the information
contained in the Registration Statement and the Prospectus;
(h) on the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriters a letter, dated such date, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus;
(i) the Underwriters shall have received on and as of the
Closing Date an opinion of Brown & Wood, counsel to the Underwriters,
with respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as the
Underwriters 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; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Underwriters such further certificates and documents
as the Underwriters shall reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein; provided that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
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Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented) shall not have been
furnished to such person at or prior to the written confirmation of the sale of
such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter expressly for use in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceedings or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
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counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by the
first of the named Underwriters on Schedule I hereto and any such separate firm
for the Company, its directors, its officers who sign the Registration Statement
and such control persons of the Company or authorized representatives shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
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untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitation set forth above,
any legal or other expenses incurred by such Indemnified Person in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No persons guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amount of the
Securities set forth opposite their names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
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8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, or the National Association of Securities Dealers,
Inc., (ii) trading of any securities of or guaranteed by the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Underwriters, is material and adverse and which, in the judgment of the
Underwriters, makes it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
9. If this Agreement shall be terminated by the Underwriters, or either
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriter as has so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Securities.
10. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
11. Any action by the Underwriters hereunder may be taken by the
Underwriters jointly or by Morgan Stanley & Co. Incorporated alone on behalf of
the Underwriters, and any such action taken by the Underwriters jointly or by
Morgan Stanley & Co. Incorporated alone shall be binding upon the Underwriters.
All notices and other communications hereunder shall be in
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writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication.
Notices to the Underwriters shall be given to them c/o Morgan Stanley &
Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention: Debt
Syndicate Department, Telecopier No. (212) 761-0785. Notices to the Company
shall be given to it at Trinova Corporation, 3000 Strayer, Maumee, Ohio
43537-0050, Attention: James E. Kline, Vice President and General Counsel,
Telecopier No: (419) 867-2209.
12. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
TRINOVA Corporation
By: /s/ WILLIAM R. AMMANN
----------------------
Name: William R. Ammann
Title: Vice President-
Administration and
Treasurer
Accepted: May 29, 1996
MORGAN STANLEY & CO. INCORPORATED
J.P. MORGAN SECURITIES INC.
By: MORGAN STANLEY & CO. INCORPORATED
On behalf of each of the Underwriters
By: /S/ JENNIFER A. HARRIS
----------------------
Name: Jennifer A. Harris
Title: Vice President
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SCHEDULE I
Principal Amount
Underwriter of Securities
----------- ----------------
Morgan Stanley & Co. Incorporated........................ $ 50,000,000
J.P. Morgan Securities Inc............................... $ 50,000,000
Total.................................. $100,000,000
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