5,000,000 Shares
TEREX CORPORATION
Common Stock
(par value $.01)
UNDERWRITING AGREEMENT
December 5, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. Introductory. Terex Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell 5,000,000 shares of its Common Stock, par value $.01
per share ("Securities") (such 5,000,000 shares of Securities being hereinafter
referred to as the "Firm Securities"). The Company also proposes to sell to the
Underwriter (as defined below), at the option of the Underwriters, an aggregate
of not more than 750,000 additional shares of its Securities (such 750,000
additional shares of Securities being hereinafter referred to as the "Optional
Securities"). The Firm Securities and the Optional Securities are herein
collectively called the "Offered Securities". The Company hereby agrees with the
Underwriter named in Schedule A hereto ("Underwriter") as follows:
2. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i) A registration statement (No. 333-52933), including a basic
prospectus, relating to certain of the Company's equity and debt
securities and warrants and rights (including the Offered Securities)
and the offering thereof from time to time in accordance with Rule 415
under the Securities Act of 1933, as amended (the "Act") has been
filed with the Securities and Exchange Commission ("Commission") and
has been declared effective under the Act and the Offered Securities
all have been duly registered under the Act pursuant to such
registration statement. For purposes of this Agreement, "Effective
Time" with respect to such registration statement means the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission. "Effective Date" with respect to such registration
statement means the date of the Effective Time thereof. Such
registration statement, as amended as of the date hereof, including
all material incorporated by reference therein, is hereinafter
referred to as the "Registration Statement". The basic prospectus
included in such Registration Statement, as supplemented by the filing
of a prospectus supplement (the "Prospectus Supplement") as
contemplated by Section 5 hereof to reflect the terms of the offering
of the Offered Securities, as first filed with the Commission pursuant
to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act
(or if no such filing is required, as included in the Registration
Statement), except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424(b), the term
"Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in
either case, including all material incorporated by reference in such
basic prospectus and Prospectus Supplement, is hereinafter referred to
as the "Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) On the Effective Date of the Registration Statement, the
Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended
(the "TIA") and the published rules and regulations of the Commission
("Rules and Regulations") and did not include 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 on the date of this Agreement, the Registration
Statement and the basic prospectus included therein conform, and at
the time of filing of the final Prospectus Supplement pursuant to Rule
424(b), the Registration Statement and the Prospectus will conform, in
all material respects to the requirements of the Act, the TIA and the
Rules and Regulations, and none of such documents includes, or will
include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading. The preceding sentence does not apply to statements in
or omissions from the Registration Statement or the Prospectus based
upon written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b)
hereof. The Company's Annual Report on Form 10-K most recently filed
with the Commission and all subsequent reports (collectively, the
"Exchange Act Reports") which have been filed by the Company with the
Commission or sent to stockholders pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act") did not include, as of their
respective dates, any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Such documents, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with the corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Company
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified and in good standing could
not reasonably be expected, individually or in the aggregate, to have
a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(iv) Each subsidiary of the Company that (i) generates 5% or more
of the revenues, (ii) generates 5% or more of the operating income, or
(iii) holds 5% or more of the assets, in each case, of the Company and
its subsidiaries on a consolidated basis (each a "Significant
Subsidiary"), has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority to own its
properties and conduct its business as described in the Prospectus;
and each Significant Subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing could not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect; all of the issued and outstanding capital stock of
each Significant Subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and, except as
expressly disclosed or incorporated by reference in the Prospectus and
except for (i) pledges in favor of Credit Suisse First Boston, as
collateral agent for the lenders under the Company's (A) Credit
Agreement, dated as of March 6, 1998, as amended (the "Credit
Facility"), among the Company, certain of its subsidiaries and the
lenders named therein, and (B) Tranche C Credit Agreement, dated as of
July 2, 1999, as amended and restated as of August 23, 1999, among the
Company and the lenders named therein and (ii) the purchase money
security interest in respect of 49% of the share capital of Gru
Comedil SpA, the capital stock of each Significant Subsidiary owned by
the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(v) The Offered Securities, when issued pursuant to this
Agreement, will be, and all other outstanding shares of capital stock
of the Company have been, duly authorized and validly issued, will be
or are, as the case may be, fully paid and nonassessable, and conform
in all material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
the Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(vii) Except for (a) that certain Registration Rights Agreement,
dated May 9, 1995, between the Company, Xxxxxxxx & Company, Inc., and
Xxxxxx, Read & Co. Inc., and (b) that certain Stock Purchase
Agreement, dated November 26, 2001, between the Company, PPM
Deutschland GmbH Terex Cranes and Xxxx Xxxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx-Xxxxxxx, and Xxxxx
Xxxxxxx, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(viii) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the performance by the
Company of its obligations under this Agreement, except such as have
been obtained and made under the Act and such as may be required under
state securities laws.
(ix) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any
Significant Subsidiary of the Company or any of their properties, or
any agreement or instrument to which the Company or any Significant
Subsidiary is a party or by which the Company or any Significant
Subsidiary is bound or to which any of the properties of the Company
or any Significant Subsidiary is subject, or the charter or by-laws of
the Company or any Significant Subsidiary, except in each such case,
(i) that any rights to indemnity and contribution herein may be
limited by federal and state securities laws and public policy
considerations and (ii) for such breaches, violations and defaults as
could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) Except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries have good title to all real properties and
all other properties and assets owned by them that are material to the
Company and its subsidiaries taken as a whole, in each case free from
liens and encumbrances that would materially affect the value thereof
or materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries hold any leased real or personal property
that is material to the Company and its subsidiaries taken as a whole
under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(xii) The Company and its subsidiaries (A) possess all
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them, except for those which the failure to so possess
could not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, and (B) have not received any notice
of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, could reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(xiii) Except as disclosed in the Prospectus, no labor strike,
slowdown, stoppage or dispute (except for routine disciplinary and
grievance matters) with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent, that could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(xiv) The Company and its subsidiaries own, possess, have the
right to use, or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") used in the conduct of
the business now operated by them, except for such failures to so own,
possess or have the right to use or acquire such intellectual property
rights as which could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xv) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries (i) is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), (ii) owns or
operates any real property that to the knowledge of the Company is
contaminated with any substance that is subject to any environmental
laws, (iii) is to the knowledge of the Company liable for any off-site
disposal or contamination pursuant to any environmental laws, or (iv)
is to the knowledge of the Company subject to any claim relating to
any environmental laws, in each case of clauses (i), (ii), (iii) or
(iv) above, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead
to such a claim.
(xvi) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that have a
reasonable likelihood of being adversely determined and, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened in writing or, to
the Company's knowledge, contemplated.
(xvii) The financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly in all material respects the financial position, as applicable,
(a) of the Company and its consolidated subsidiaries, (b) of PPM
Cranes, Inc. and its consolidated subsidiaries, in each case as of the
dates shown and their results of operations and cash flows for the
periods shown (subject in the case of interim financial statements to
normal year-end adjustments), and such financial statements have been
prepared in conformity with generally accepted accounting principles
in the United States applied on a consistent basis and the schedules
included in the Registration Statement present fairly the information
required to be stated therein.
(xviii) Except as disclosed in the Prospectus, since the date of
the latest financial statements included in the Prospectus, there has
been no material adverse change, nor any development or event that
could reasonably be expected to result in a material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock.
(xix) 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 Prospectus will not be, an "investment
company" as defined in the Investment Company Act of 1940.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, at a
purchase price of $16.75 per share, the Firm Securities.
The Company will deliver the Firm Securities to the Underwriter, against
payment of the purchase price in Federal (same day) funds by wire transfer to an
account at a United States financial institution designated in advance in
writing by the Company, at the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, at 9:00 A.M., New York time, on December 10, 2001, or at such other time
not later than seven full business days thereafter as Xxxxxxx Xxxxx Barney Inc.
("Xxxxxxx Xxxxx Xxxxxx") and the Company determine, such time being herein
referred to as the "First Closing Date". The certificates for the Firm
Securities to be so delivered will be in definitive form, in such denominations
and registered in such names as Xxxxxxx Xxxxx Barney requests and will be made
available for checking and packaging at the above office at least 24 hours prior
to the First Closing Date.
In addition, upon written notice from Xxxxxxx Xxxxx Xxxxxx given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus Supplement, the Underwriter may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriter the number of Optional
Securities specified in such notice and the Underwriter agrees to purchase such
Optional Securities. Such Optional Securities shall be purchased for the account
of the Underwriter and may be purchased by the Underwriter only for the purpose
of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time in accordance with this Section 3 and to the extent
not previously exercised may be surrendered and terminated at any time upon
notice by Xxxxxxx Xxxxx Barney to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by Xxxxxxx
Xxxxx Xxxxxx but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Underwriter, against payment of the purchase price therefor in Federal (same
day) funds by wire transfer to an account at a United States financial
institution designated in advance in writing by the Company, at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as Xxxxxxx Xxxxx Barney
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office at least 24 hours
in advance of such Optional Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter proposes
to offer the Offered Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
Underwriter that:
(a) Immediately following the execution of this Agreement, the Company
will prepare a final Prospectus Supplement that complies with the Act and
the Rules and Regulations and that reflects the terms of the offering of
the Offered Securities and such other information as the Underwriter and
the Company deem appropriate. The Company will file the Prospectus
Supplement with the Commission pursuant to and in accordance with
subparagraph (2) (or if applicable and if consented to by Xxxxxxx Xxxxx
Xxxxxx, subparagraph (5)) of Rule 424(b) not later than the second business
day following the execution and delivery of this Agreement. The Company
will advise Xxxxxxx Xxxxx Barney promptly of any such filing pursuant to
Rule 424(b).
(b) The Company will advise Xxxxxxx Xxxxx Xxxxxx promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus prior to the termination of the offering of the Offered
Securities and will not effect such amendment or supplementation without
Xxxxxxx Xxxxx Barney's consent, which consent shall not be unreasonably
withheld or delayed; and, prior to the termination of the offering of the
Offered Securities, the Company will also advise Xxxxxxx Xxxxx Xxxxxx
promptly of the effectiveness of any amendment or supplementation of the
Registration Statement or the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its reasonable best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by the Underwriter or any dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company will
promptly notify Xxxxxxx Xxxxx Barney of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither Xxxxxxx Xxxxx Xxxxxx'x consent
to, nor the Underwriter's delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the first effective date of the
Registration Statement relating to the Offered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of this Agreement,
which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Underwriter one copy of the
Registration Statement (which will contain conformed signatures and will
include all exhibits), each related preliminary prospectus supplement, and,
so long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by the Underwriter or
any dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as Xxxxxxx Xxxxx Barney
reasonably requests. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the execution and
delivery of this Agreement. All other such documents shall be so furnished
as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriter all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as Xxxxxxx Xxxxx
Xxxxxx reasonably designates and will continue such qualifications in
effect so long as required for the distribution.
(g) The Company will file an application to list the Offered
Securities on the New York Stock Exchange prior to December 10, 2001.
(h) During the period of two years hereafter, the Company will furnish
to the Underwriter, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Underwriter as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act, or mailed to stockholders.
(i) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, announce their intention to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares of
its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities (except for the filing of a
Shelf Registration Statement on Form S-3), or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of Xxxxxxx Xxxxx Barney, and the Company
shall, concurrently with the execution of this Agreement, deliver an
agreement executed by each of the officers and directors of the Company
listed on Schedule B hereto to the effect that each such person will not
engage in any of the foregoing transactions (other than bona fide pledges)
with respect to any Securities or securities convertible into or
exchangeable or exercisable for any Securities, in each case beneficially
owned by such person during such period. The foregoing shall not apply to
(i) any Securities issuable upon the exercise or redemption of an option or
warrant or the conversion or exchange of a security, in each case
outstanding on the date of the Prospectus Supplement and in accordance with
its terms of the respective securities, (ii) any securities of the Company
sold or granted pursuant to the Company's incentive and other benefit plans
as in effect as of the date of the Prospectus Supplement, (iii) any shares
of its Securities issued upon exercise of the Company's issued and
outstanding Equity Rights in accordance with the terms thereof, (iv) any
warrants or securities convertible into its Securities issued in exchange
for any of the Company's warrants, options or Equity Rights outstanding on
the date of the Prospectus Supplement, (v) securities issued as
consideration for any acquisition (pursuant to a merger or otherwise) of
one or more entities, and (vi) any Securities issued pursuant to the Stock
Purchase Agreement, dated November 26, 2001, between the Company, PPM
Deutschland GmbH Terex Cranes and Xxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx
Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx-Xxxxxxx, and Xxxxx Xxxxxxx.
(j) The Company agrees with the Underwriter that the Company will pay
all expenses incident to the performance of the obligations of the Company
under this Agreement, for any filing fees and other expenses (including
reasonable fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as Xxxxxxx Xxxxx Xxxxxx reasonably designates and the
printing of memoranda relating thereto, for the filing fee incident to the
review by the National Association of Securities Dealers, Inc. of the
Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriter.
(k) The Company agrees that it will use the net proceeds to it from
the Offered Securities in the manner described in the Prospectus Supplement
under the caption "Use of Proceeds".
6. Conditions of the Obligations of the Underwriter. The obligations of the
Underwriter to purchase and pay for the Firm Securities on the First Closing
Date and the Optional Securities to be purchased on each Optional Closing Date
will be subject to the accuracy in all material respects of the representations
and warranties on the part of the Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Underwriter shall have received a letter, dated such Closing
Date, of PricewaterhouseCoopers LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in or incorporated by reference in the
Registration Statement;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, and of all subsidiaries of the Company for which such
interim financial statements are provided, inquiries of officials of
the Company, and of such subsidiaries, who have responsibility for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements included in or
incorporated by reference in the Registration Statement do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations or any material modifications should be
made to such unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
total debt or any decrease in consolidated net current assets
(working capital) or decrease in shareholders' equity of the
Company and its consolidated subsidiaries, as compared with
amounts shown on the latest balance sheet included or
incorporated by reference in the Prospectus; or
(C) for the period from the closing date of the latest
income statement included or incorporated by reference in the
Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the
latest income statement included or incorporated by reference in
the Prospectus, in consolidated net sales or in the total or per
share amounts of consolidated net income;
(D) based on inquiries of Company officials, at a subsequent
specified date, not more than three business days prior to the
date of this Agreement, there was any change in common stock or
increase in total debt of the Company and its consolidated
subsidiaries, as compared with amounts shown on the latest
balance sheet included or incorporated by reference in the
Prospectus; or
(E) for the period from the closing of the latest income
statement included or incorporated by reference in the Prospectus
to a subsequent specified date, not more than three business days
prior to the date of this Agreement, based on inquiries of
Company officials, there were any decreases, as compared with the
corresponding period of the previous year, in consolidated net
sales or in the total or per share amounts of consolidated net
income;
except in all cases set forth in clauses (B) (C), (D) or (E) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter;
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statements.
(b) The Prospectus Supplement shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of
this Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Underwriter, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event that
could reasonably be expected to result in a change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, which, in the judgment of
the Underwriter, is material and adverse to the Company and its
subsidiaries taken as a whole and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating in effect on the date of this Agreement of any debt
securities or preferred stock of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or
any suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium declared by
U.S. Federal or New York authorities; or (v) any outbreak or escalation of
hostilities in which the United States is involved, any declaration of war
by Congress or any other national or international calamity or emergency
if, in the judgment of the Underwriter, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, dated such Closing
Date, of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, counsel to the
Company, to the effect that:
(i) The Company and each Significant Subsidiary organized under
the laws of the State of Delaware are corporations duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware and have all requisite corporate power and authority to own
their respective properties and carry on their respective businesses
as described in the Prospectus;
(ii) The Offered Securities to be issued pursuant to this
Agreement have been duly authorized for issuance to the Underwriter
and upon the issuance and delivery of the Offered Securities and the
receipt by the Company of all consideration therefor in accordance
with the terms of this Agreement, the Offered Securities will be
validly issued, fully paid and non-assessable, and free of preemptive
rights pursuant to law or in the Company's certificate of
incorporation or by-laws, and the Offered Securities will conform in
all material respects to the description thereof contained in the
Prospectus.
(iii) Except for those agreements referred to in the
representation in Section 2(a)(vii) above, there are no contracts,
agreements or understandings known to such counsel between the Company
and any person granting such person the right to require the Company
to include any securities in the securities registered pursuant to the
Registration Statement;
(iv) 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 Prospectus, will not be an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended;
(v) The Company and each Significant Subsidiary incorporated
under the laws of the State of New York or the State of Delaware
("Domestic Significant Subsidiaries") are not required to obtain any
consent, approval, authorization of, order of, or declaration, filing
or registration with, any governmental authority under any Applicable
Law (as defined) in connection with or as a condition to consummation
by the Company of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except such
consents, approvals, authorizations, orders, declarations, filings or
registrations as have been obtained and made under the Act and such as
may be required under state securities laws (with respect to which
such counsel need express no opinion).
(vi) The execution, delivery and performance of this Agreement by
the Company have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement has been validly
executed and delivered by the Company. The execution, delivery and
performance by the Company of this Agreement, and compliance by it
therewith, do not and will not (a) conflict with, constitute a default
under or violate (i) any provision of the certificate of incorporation
or by-laws of the Company or any Domestic Significant Subsidiary, (ii)
any Applicable Law (except state securities and blue sky laws, as to
which such counsel need express no opinion and except that any rights
to indemnity and contribution herein may be limited by federal and
state securities laws and public policy considerations); (iii) to such
counsel's knowledge, any judgment, order, writ, injunction or decree
to which the Company, its Domestic Significant Subsidiaries or any of
their respective properties are subject, or (iv) any agreement or
instrument filed as an exhibit to the Registration Statement or any
Exchange Act filing incorporated by reference in the Registration
Statement.
(vii) The Registration Statement was declared effective under the
Act at 10:00 a.m. on July 9, 1998, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein, and, to the best of the
knowledge of such counsel based solely upon not having heard anything
to the contrary in conversations with the staff of the Securities
Exchange Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act or proceedings
therefor instituted, threatened, pending, or contemplated by the
Commission, and the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of their respective effective
or issue dates and as of such Closing Date (except as to financial
statements and related notes, and financial and statistical data and
supporting schedules included or incorporated by reference therein, as
to which such counsel need express no opinion) complied as to form in
all material respects with the requirements of the Act and the Rules
and Regulations; and that while such counsel is not passing upon and
does not assume responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement or any Prospectus
(except statements made under the captions "Description of Debt
Securities," "Description of Preferred Stock," "Description of Common
Stock," "Description of Warrants" and "Description of Rights" in the
basic prospectus and "Description of Common Stock" in the Prospectus
Supplement, insofar as they relate to legal matters), such counsel
shall state that based upon such participation but without independent
review or verification, nothing has come to such counsel's attention
which causes such counsel to believe that, at the time the
Registration Statement or any amendment thereto became effective or as
of such Closing Date, the Registration Statement (except as to
financial statements and related notes, and financial and statistical
data and supporting schedules included or incorporated by reference
therein, as to which such counsel need express no opinion), contained
any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; or at such Closing Date the Registration Statement or
Prospectus (except as aforesaid) contained any untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and Prospectus of statutes,
legal and governmental proceedings and contracts and other documents
are accurate in all material respects and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings that are required to be described in
the Registration Statement or the Prospectus which are not described
as required or of any contracts or documents of a character that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required.
Such counsel may state that, as it relates to enforceability, the opinions
expressed in clause (vii) are limited by (1) bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally and (2)
equitable principles of general applicability. Such counsel may also qualify
such opinion in other respects reasonably acceptable to Xxxxxxx Xxxxx Barney.
(e) The Underwriter shall have received an opinion, dated such Closing
Date, of Xxxx X Xxxxx, general counsel of the Company, to the effect that:
(i) The Company and each Significant Subsidiary incorporated within
the United States of America (the "Domestic Significant Subsidiaries") have
been duly incorporated and are existing corporations in good standing under
the laws of their respective jurisdictions of incorporation, with corporate
power and authority to own their respective properties and conduct their
respective businesses as described in the Prospectus; and the Company and
each Domestic Significant Subsidiary are duly qualified to do business as
foreign corporations in good standing in all other jurisdictions in which
their ownership or lease of property or the conduct of their business
requires such qualifications, except to the extent that the failure to be
so qualified and in good standing could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect. Based
on my review of organizational documents (or English translations thereof)
of each Significant Subsidiary incorporated outside the United States of
America (the "Foreign Significant Subsidiaries") and interviews and
statements of persons who are informed as to the formation and status of
the Foreign Significant Subsidiaries, the Foreign Significant Subsidiaries
have been duly incorporated and are existing corporations in good standing
under the laws of their respective countries of organization, with
corporate power and authority to own their respective properties and
conduct their respective businesses as described in the Prospectus; based
on my review of organizational documents (or English translations thereof)
of the Foreign Significant Subsidiaries and interviews and statements of
persons who are informed as to the formation and status of the Foreign
Significant Subsidiaries, the Foreign Significant Subsidiaries are duly
qualified to do business as foreign corporations in good standing in all
other jurisdictions in which their ownership or lease of property or the
conduct of their business requires such qualifications, except to the
extent that the failure to be so qualified and in good standing could not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(ii) Based upon my examination of the corporate stock books and
records of each of the Domestic Significant Subsidiaries and the corporate
stock books and records (or English translations thereof) of the Foreign
Significant Subsidiaries and interviews and statements of persons who are
informed as to the status of the Foreign Significant Subsidiaries, the
Offered Securities, when issued in accordance with the Underwriting
Agreement, will be, and all other outstanding shares of the capital stock
of the Company and each Significant Subsidiary have been, duly authorized
and validly issued, are fully paid and nonassessable and conform in all
material respects to the description thereof contained in the Prospectus;
and the stockholders of the Company have no preemptive rights with respect
to the Offered Securities;
(iii) Except for those agreements referred to in the representation
set forth in Section 2(a)(vii) hereof, there are no contracts, agreements
or understandings known to such counsel between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act;
(iv) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company or any Significant Subsidiary under any Applicable Law
for the consummation of the transactions contemplated by this Agreement in
connection with the sale of the Offered Securities, except such as have
been obtained and made under the Act and such as may be required under
state securities laws (with respect to which such counsel need express no
opinion);
(v) The execution and delivery of, and performance by the Company of
its obligations under, this Agreement will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any Applicable Law or order known to such counsel of any
governmental agency or body or any court having jurisdiction over the
Company or any Significant Subsidiary or any of their respective properties
(except that any rights to indemnity and contribution herein may be limited
by federal and state securities laws and public policy considerations), or
any agreement or instrument to which the Company or any Significant
Subsidiary is a party or by which the Company or any Significant Subsidiary
is bound or to which any of properties of the Company or any Significant
Subsidiary is subject, or the charter or by-laws of the Company or any
Significant Subsidiary.
(vi) The Registration Statement was declared effective under the Act
at 10:00 a.m. on July 9, 1998, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act,
and the Registration Statement and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates and as
of such Closing Date, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; and that while such
counsel is not passing upon and does not assume responsibility for, and
shall not be deemed to have independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or any Prospectus (except statements made under the captions
"Description of Debt Securities," "Description of Preferred Stock,"
"Description of Common Stock," "Description of Warrants" and "Description
of Rights" in the basic prospectus and "Description of Common Stock" in the
Prospectus Supplement, insofar as they relate to legal matters), such
counsel shall state that no facts have come to such counsel's attention in
the course of participating with officers and representatives of the
Company in the preparation of the Registration Statement (except for
financial statements and schedules and other financial and statistical data
contained therein, as to which such counsel need express no opinion) to
lead it to believe that any part of the Registration Statement or any
amendment thereto, as of its effective date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; or that the Prospectus or any amendment
or supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; the
descriptions in the Registration Statement and Prospectus of statutes,
legal and governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and such
counsel do not know of any legal or governmental proceedings required to be
described in the Registration Statement or the Prospectus which are not
described as required or of any contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement which are not
described or filed as required; and
(vii) This Agreement has been duly authorized, executed and delivered
by the Company.
Such counsel may state that, as it relates to enforceability, the opinions
expressed in clause (vi) are limited by (1) bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors' rights generally and (2)
equitable principles of general applicability. Such counsel may also qualify
such opinion in other respects reasonably acceptable to Xxxxxxx Xxxxx Barney.
(f) The Underwriter shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Underwriter, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters as the
Underwriter may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(g) The Underwriter shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
their knowledge after reasonable investigation, shall state that: the
representations and warranties of the Company in this Agreement are true
and correct in all material respects; the Company has complied in all
material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and, subsequent to the
date of the most recent financial statements incorporated by reference in
the Prospectus, there has been no material adverse change, nor any
development or event that could reasonably be expected to result in a
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Prospectus
or as described in such certificate.
(h) The Company will furnish the Underwriter with such conformed
copies of such opinions, certificates, letters and documents as the
Underwriter reasonably requests. The Underwriter may in its sole discretion
waive compliance with any conditions to the obligations of the Underwriter
hereunder, whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, to which the
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse the Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability (or
actions in respect thereof) arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in conformity with written information furnished
to the Company by the Underwriter specifically for use therein, it being
understood and agreed that the only such information furnished by the
Underwriter consists of the information described as such in subsection (b)
below.
(b) The Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in conformity with written
information furnished to the Company by the Underwriter specifically for
use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by the Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of the Underwriter: the
concession and reallowance figures appearing in the fourth paragraph under
the caption "Underwriting", and the last paragraph under the caption
"Underwriting" concerning over-allotments and stabilizing.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In no event shall the indemnifying party
be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action 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 any
claims that are the subject matter of such action. An indemnifying party
shall not be liable for any settlement of any proceeding effected without
its prior written consent; provided, however, that if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees it shall be liable for any settlement effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriter 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 and the Underwriter in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriter shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by the Underwriter. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriter and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), the Underwriter
shall not 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 which the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter (as hereinafter defined) within the meaning of the
Act; and the obligations of the Underwriter under this Section shall be in
addition to any liability which the Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Underwriter is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company and the Underwriter
pursuant to Section 7 shall remain in effect; if any Offered Securities have
been purchased hereunder, the Company shall remain responsible for the expenses
to be paid or reimbursed by them pursuant to Section 5 and the respective
obligations of the Company and the Underwriter pursuant to Section 7 shall
remain in effect, and the representations and warranties in Section 2 and all
other obligations under Section 5 shall also remain in effect. If the purchase
of the Offered Securities by the Underwriter is not consummated for any reason
other than solely because of the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 6(c), the Company will reimburse the Underwriter
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriter, will be mailed, delivered or telegraphed and confirmed to the
Underwriter, c/o Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 Attention: Xxxxxxxx Xxxxx, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Terex Corporation, 000
Xxxx Xxxx Xxxx, Xxxxxxxx, XX 00000, Attention: Xxxx X Xxxxx.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective personal representatives and
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligation hereunder.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws. The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Underwriter's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company and the
Underwriter in accordance with its terms.
Very truly yours,
Terex Corporation
By /s/ Xxxx X Xxxxx
-----------------------
Name: Xxxx X Xxxxx
Title: Senior Vice President
The foregoing Underwriting Agreement is hereby confirmed and accepted as of
the date first above written.
Xxxxxxx Xxxxx Barney Inc.
By Xxxxxxx Xxxxx Xxxxxx Inc.
By /s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Direcor, Global Co-Head Diversified Industries
SCHEDULE A
Number of
Firm Securities
Underwriter to be Purchased
----------- ---------------
Xxxxxxx Xxxxx Barney Inc. 5,000,000
=========
Total 5,000,000
SCHEDULE B
Xxxxxx X. XxXxx
G. Xxxxx Xxxxxxxx
Xxx XxXxxxxx
Xxxxxxx X. Xxxx
Xx. Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxx Xxxx
