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EXHIBIT 1.1
YORK INTERNATIONAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
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From time to time, York International Corporation, a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein sometimes referred to as this "Agreement."
Terms defined in the Underwriting Agreement are used herein as therein
defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Debt Securities and has filed with, or transmitted
for filing to, or shall promptly hereafter file with or transmit for filing
to, the Commission a prospectus supplement (the "Prospectus Supplement")
specifically relating to the Offered Securities pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the Prospectus
Supplement. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Offered Securities, together with the
Basic Prospectus. As used herein, the terms "Basic Prospectus," "Prospectus"
and "preliminary prospectus" shall include in each case the documents
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Basic Prospectus by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If the Company has
filed an abbreviated registration statement to register additional Offered
Securities pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending before
or, to the knowledge of the Company, threatened by the Commission.
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(b) (i) Each document, if any, filed or to be filed
pursuant to the Exchange Act and incorporated by reference in the
Prospectus complied or will comply when so filed as to form in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit 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, except that the representations and warranties set forth
in this Section 1(b) do not apply to (A) statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Manager expressly for use therein or (B)
that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), of the Trustee.
(c) Each of the Company and its Significant
Subsidiaries has been duly incorporated, is validly existing as a
corporation in good standing (if applicable) under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
currently conducted and is duly qualified to transact business and in
good standing (if applicable) in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or in good standing would not have a material adverse
effect on the business or financial condition of the Company and its
subsidiaries, taken as a whole. "Significant Subsidiary" shall have
the meaning set forth in Rule 1-02 of Regulation S-X under the Act.
(d) This Agreement has been duly authorized, executed
and delivered by the Company.
(e) The Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in
effect affecting creditors' rights generally and (ii) application of
general principles of equity.
(f) The Offered Securities have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting
Agreement, will be entitled to the benefits of the Indenture, and
will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (i) the en-
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forceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in
effect affecting creditors' rights generally and (ii) application of
general principles of equity.
(g) The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Indenture and the Offered Securities will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its Significant
Subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any material judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any Significant Subsidiary, and no material consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture or the
Offered Securities, except such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer
and sale of the Offered Securities.
(h) There has not occurred any material adverse change,
or any development involving a prospective material adverse change,
in the business or financial condition of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(i) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which the
Company or any of its Significant Subsidiaries is a party or to which
any material properties of the Company or any of its Significant
Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required.
(j) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied as to form when so filed in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder.
(k) Each of the Company and its Significant
Subsidiaries has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business as currently
conducted, except to the extent that the failure to obtain or file
would not have a material adverse effect on business or financial
condition of the Company and its subsidiaries, taken as a whole.
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(l) The Company is not, and after giving effect to the
offering and the sale of the Offered Securities and the application
of the proceeds thereof as described in the Registration Statement
and Prospectus will not be, required to register as an "investment
company" as such term is defined in the investment Company Act of
1940, as amended (the "1940 Act").
(m) Each of the Company and its Significant
Subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate,
have a material adverse effect on the business and financial
condition of the Company and its subsidiaries, taken as a whole.
2. TERMS OF PUBLIC OFFERING. The Company is advised by
the Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided
in this Section 3, payment for the Offered Securities shall be made by wire
transfer of immediately available funds to such accounts as the Company may
designate, at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several
Underwriters of the Offered Securities registered in such names and in such
denominations as the Manager shall request in writing not less than two full
business days prior to the date of delivery, with any transfer taxes payable
in connection with the transfer of the Offered Securities to the Underwriters
duly paid.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The
several obligations of the Underwriters are subject to the following
conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
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(ii) there shall not have occurred any change,
or any development involving a prospective change, in the
business or financial condition of the Company and its
subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in
the judgment of the Manager, is material and adverse and
that makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (a)(i)
above and to the effect that the representations and warranties of
the Company contained in this Agreement are true and correct as of
the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an
opinion of Xxxx X. Xxxxx, General Counsel of the Company, dated the
Closing Date, to the effect that:
(i) each of the Company and its Significant
Subsidiaries has been duly incorporated, is validly existing
as a corporation in good standing (if applicable) under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as currently conducted and is duly
qualified to transact business and is in good standing (if
applicable) in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a
material adverse effect on the business or financial
condition of the Company and its subsidiaries taken as a
whole;
(ii) the execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement, the Indenture and the Offered
Securities will not contravene any provision of applicable
law of the United States or of the state of Pennsylvania or
the certificate of incorporation or the by-laws of the
Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or
any of its Significant Subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or, to the
best of such counsel's knowledge, any material judgment,
order or decree of any governmental body, agency or court
having jurisdiction over the Company or any such subsidiary,
and no material consent, approval, authorization or order
of, or qualification with, any governmental body or agency
is required for the performance by the Company of its
obligations under this Agreement, the Indenture and the
Offered Securities, except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered
Securities;
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(iii) after due inquiry, such counsel does not
know of any legal or governmental proceedings pending or
threatened to which the Company or any of its Significant
Subsidiaries is a party or to which any material properties
of the Company or any of its Significant Subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not
described or filed as required;
(iv) no consent, approval, authorization or
order of, or qualification with, any governmental body or
agency is required under United States Federal law or the
General Corporation Law of the State of Delaware for the
performance by the Company of its obligations under this
Agreement, the Indenture or the Offered Securities; and
(v) the Company is (A) in compliance with any
and all applicable Environmental Laws, (B) has received all
permits, licenses, or other approvals required of it under
applicable Environmental Laws to conduct its business and
(C) is in compliance with all terms and conditions of any
such permit, license or approval, except where such
non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the
aggregate, have a material adverse effect on the business
and financial condition of the Company and its subsidiaries,
taken as a whole.
(d) You shall have received on the Closing Date an
opinion of Wachtell, Lipton, Xxxxx & Xxxx, special outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated
under the laws of the State of Delaware;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Indenture has been duly qualified
under the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company, and assuming due
authorization, execution and delivery by the Trustee,
constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws from time to time in
effect affecting creditors' rights generally and to general
principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding at
law or in equity);
(iv) the Offered Securities have been duly
authorized, and when executed and authenticated in
accordance with the provisions of the Indenture and
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delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will
constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indentures (subject
to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws from time to time in effect
affecting creditors' rights generally and to general
principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding at
law or in equity);
(v) neither the execution and delivery of the
Indenture, the Underwriting Agreement, the issue and sale of
the Offered Securities, nor the fulfillment of the terms
thereof will conflict with, result in a breach or violation
of, or imposition of any lien, charge or encumbrance upon
any material property of the Company pursuant to (i) the
Company's Amended and Restated Certificate of Incorporation,
as amended, or (ii) any law, rule or regulation of the
United States applicable to securities transactions or the
General Corporation Law of the State of Delaware;
(vi) no consent, approval, authorization or
order of, or qualification with, any governmental body or
agency is required under New York State law for the
performance by the Company of its obligations under this
Agreement, the Indenture or the Offered Securities except
such as may be required by the securities or "blue sky" laws
of the State of New York in connection with the offer and
sale of the Offered Securities;
(vii) the statements relating to legal matters
included in (A) the Prospectus under the captions
"Description of Debt Securities" and (B) the Registration
Statement in Item 15, in each case fairly summarize in all
material respects such legal matters;
(viii) (A) no facts have come to the attention of
such counsel which lead it to believe that each document
filed pursuant to the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus
(other than the financial statements and related notes
thereto and the other financial, statistical, reserve and
accounting data included in or omitted from the effective
Registration Statement and Prospectus, all as to which such
counsel need express no opinion) did not comply when so
filed as to form in all material respects with the Exchange
Act and the applicable rules and regulations of the
Commission thereunder, (B) no facts have come to the
attention of such counsel which lead it to believe the
Registration Statement or the Prospectus (other than the
financial statements and related notes thereto and the other
financial, statistical, reserve and accounting data included
in or omitted from the effective Registration Statement and
Prospectus, all as to which such counsel need express no
opinion) do not comply as to form in all material respects
with the Securities Act and the rules and regulations of the
Commission thereunder, (C) although such counsel has not
independently verified, and is not passing upon and assumes
no responsibility for, the accuracy, completeness or
fairness of, or otherwise verified, the statements made in
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the effective Registration Statement, no facts have come to
the attention of such counsel which lead it to believe that
the effective Registration Statement (other than the
financial statements and related notes thereto and the other
financial, statistical, reserve and accounting data included
in or omitted from the effective Registration Statement, all
as to which such counsel need express no opinion), on the
date thereof or at the Closing Date contained or contains
any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (D)
although such counsel has not independently verified, and is
not passing upon and assumes no responsibility for, the
accuracy, completeness or fairness of, or otherwise
verified, the statements made in the Prospectus, no facts
have come to the attention of such counsel which lead it to
believe that the Prospectus (other than the financial
statements and related notes thereto and the other
financial, statistical, reserve and accounting data included
in or omitted from the Prospectus, all as to which such
counsel need express no opinion), on the date thereof or at
the Closing Date contained or contains any untrue statement
of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; and
(ix) the Company is not, and after giving
effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in
the Registration Statement and the Prospectus will not be,
required to register as an "investment company" under the
1940 Act, as such term is defined in the 1940 Act.
In rendering such opinion, such counsel may rely, without
independent verification, (A) as to matters involving the application of laws
of any jurisdiction other than the States of Delaware and New York or the
Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are reasonably satisfactory to
counsel for the Underwriter; and (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and public
officials. With respect to clauses (B), (C) and (D) of subparagraph (viii),
such counsel may further state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the documents
incorporated by reference) and review and discussion of the contains thereof
(including the documents incorporated by reference), but are without
independent check or verification except as specified. Such opinion may
contain customary assumptions, exceptions, limitations, qualifications and
comments.
(e) The Underwriters shall have received on the Closing
Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, dated the Closing Date, covering the matters referred
to in subparagraphs (ii), (iii) and (iv) and clauses (B), (C) and (D)
of subparagraph (viii) of paragraph (d) above, and to the effect that
the statements relating to legal matters, documents or proceedings
included in the Prospectus under the caption "Underwriters" fairly
summarize in all material respects such legal matters, documents or
proceedings.
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In rendering such opinion, such counsel may rely, without
independent verification, (A) as to matters involving the application of laws
of any jurisdiction other than the States of Delaware and New York or the
Federal laws of the United States, to the extent they deem proper and
specified in such opinion, upon the opinion of other counsel of good standing
whom they believe to be reliable and who are satisfactory to counsel for the
Underwriter; and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. With
respect to clauses (B), (C) and (D) of subparagraph (viii) of paragraph (d),
such counsel may further state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the documents
incorporated by reference) and review and discussion of the contains thereof
(including the documents incorporated by reference), but are without
independent check or verification except as specified. Such opinion may
contain customary assumptions, exceptions, limitations, qualifications and
comments.
The opinions of Xxxx X. Xxxxx and of Wachtell, Lipton, Xxxxx
& Xxxx described in paragraphs (c) and (d) above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(f) The Underwriters shall have received on the Closing
Date, a letter dated the Closing Date in form and substance
satisfactory to the Underwriters, from KPMG Peat Marwick LLP,
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference into the
Registration Statement and the Prospectus.
5. COVENANTS OF THE COMPANY. In further consideration
of the agreements of the Underwriters herein contained, the Company covenants
with each Underwriter as follows:
(a) To furnish the Manager, without charge, seven
signed copies of the Registration Statement (including exhibits
thereto and any documents incorporated therein by reference) and for
delivery to each other Underwriter a copy of the Registration
Statement (without exhibits thereto but including documents
incorporated therein by reference) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement as the Manager
may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to the Manager a copy of each
such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably
objects.
(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circum-
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stances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses the Manager will furnish to the Company)
to which Offered Securities may have been sold by the Manager on
behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Manager shall reasonably request and to maintain
such qualification for as long as the Manager shall reasonably
request.
(e) To make generally available to the Company's
security holders and to the Manager as soon as practicable an earning
statement covering a twelve-month period beginning on the first day
of the first full fiscal quarter after the date of this Agreement,
which earning statement shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company (other than (i) the Offered
Securities and (ii) commercial paper issued in the ordinary course of
business), without the prior written consent of the Manager.
(g) To pay all expenses incident to the performance of
its obligations under this Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto; (ii) the preparation, issuance
and delivery of the Offered Securities including any transfer taxes
payable in connection with the transfer of the Offered Securities to
the Underwriters; (iii) the fees and disbursements of the Company's
counsel and accountants and of the Trustee and its counsel; (iv) the
qualification of the Offered Securities under state securities or
Blue Sky laws in accordance with the provisions of Section 5(d),
including filing fees and the fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Memoranda; (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of
copies of the Registration Statement and all amendments thereto and
of any preliminary prospectus and the Prospectus and any amendments
or supplements thereto; (vi) the printing and delivery to the
Underwriters of copies of any Blue Sky or Memoranda; (vii) any fees
charged by rating agencies for the rating of the Offered Securities;
(viii) the filing fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.
made in connection with the Offered Securities and (ix) any expenses
incurred by the Company in connection with a "road show" presentation
to potential investors.
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6. INDEMNITY AND CONTRIBUTION. (a) The Company agrees
to indemnify and hold harmless each Underwriter, each affiliate of any
Underwriter that assists such Underwriter in the distribution of the Offered
Securities, 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, any legal or other expenses
reasonably incurred by any Underwriter, any such affiliate or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Manager expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to
the written confirmation of the sale of the Offered Securities to such person,
and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company with Section 5(a)
hereof.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this
Section 6, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying
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party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by the Manager, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 6 is unavailable to an indemnified party
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Offered Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Offered Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus Supplement, bear
to the aggregate public offering price of the Offered Securities. The relative
fault of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 6 are several in proportion to the respective principal amounts
of Offered Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if
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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 paragraph (d) of this Section 6. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages
and liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 6 and the representations, warranties and other statements of
the Company contained 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 the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Offered Securities.
7. TERMINATION. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the 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, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have
been declared by either Federal or New York State authorities or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to purchase Offered
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of Offered Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the principal amount of Offered Securities set forth
opposite their respective names in the Underwriting Agreement bears to the
aggregate principal amount of Offered Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to
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purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Offered Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such
principal amount of Offered Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Offered Securities and the aggregate principal
amount of Offered Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Offered Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Offered Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case,
either the Manager or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company
to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters
or such Underwriter as have so terminated this Agreement with respect to
themselves severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
9. COUNTERPARTS. This Agreement may be signed in two
or more counterparts each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
10. APPLICABLE LAW. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New
York.
11. HEADINGS. The headings of the sections of this
Agreement have been inserted for convenience of reference only and shall not
be deemed a part of this Agreement.
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15
UNDERWRITING AGREEMENT
________________, 200_
York International Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter
or underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters") , and we understand that
York International Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $________ aggregate initial offering price of the
Company's __% [Senior] [Senior Subordinated] [Subordinated] Notes due ____
(the "Offered Securities"). The Offered Securities will be issued pursuant to
the provisions of a [Senior] [Senior Subordinated] [Subordinated] Indenture
dated as of ______________, 200_ (the "Indenture") between the Company and The
Bank of New York, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell to the
several Underwriters, and each Underwriter agrees, severally and not jointly,
to purchase from the Company the respective principal amounts of Offered
Securities set forth below opposite their names at a purchase price of ____%
of the principal amount of Offered Securities [, plus accrued interest, if
any, from ___________ to the date of payment and delivery]:
Principal Amount of
Name Offered Securities
---- ------------------
[Manager]
[Insert syndicate list]
Total________________
The Underwriters will pay for the Offered Securities upon
delivery thereof at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, at 10 a.m., local time on ____________, 200_, or at such
other time, not later than 5:00 p.m., local time, on ____________, 200_, as
shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated ____________, 200_, and the Prospectus Supplement dated
____________, 200_, including the following:
16
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dated: and
----------------- --
commencing
----------------- --
----------------- --, ----
[(Interest accrues from
----------------- --, ----)]
Form and Denomination:
[Other Terms:]
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All provisions contained in the document entitled York
International Corporation Underwriting Agreement Standard Provisions dated
__________, 200_, a copy of which is attached hereto, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated. hereby shall not be
deemed to be a part of this Agreement.
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth below.
Very truly yours
[LEAD MANAGER]
[CO-MANAGERS]
Acting severally on behalf of themselves
and the several Underwriters named herein
By: [LEAD MANAGER]
By:
-------------------------
Name:
Title:
Accepted:
YORK INTERNATIONAL CORPORATION
By:
-----------------------------------------------
Name:
Title:
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