EXHIBIT 1.1
CIT GROUP INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
------------------------
UNDERWRITING AGREEMENT
, 2002
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000, and
Xxxxxxx, Sachs & Co., as Independent Underwriter
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CIT Group Inc., is presently organized as a Nevada corporation ("CIT GROUP
(NEVADA)"), and is a direct, wholly-owned subsidiary of Tyco Capital
Holding, Inc., a Nevada corporation ("TCH"). TCH is a direct, wholly-owned
subsidiary of Tyco Capital Ltd., a Bermuda company (the "SELLING STOCKHOLDER"),
which is an indirect, wholly-owned subsidiary of Tyco International Ltd., a
Bermuda company ("TYCO INTERNATIONAL"). Prior to the First Time of Delivery (as
defined below), Tyco will effectuate a restructuring (the "RESTRUCTURING")
whereby CIT Group (Nevada) will merge with and into TCH, and that combined
entity will further merge with and into CIT Group Inc. (Del), a Delaware
corporation and a direct, wholly-owned subsidiary of TCH (the "COMPANY"), which
will then be renamed CIT Group Inc.
The Selling Stockholder, proposes, subject to the terms and conditions
stated herein, to sell to the Underwriters named in Schedule I hereto (the
"UNDERWRITERS") an aggregate of 200,000,000 shares (the "FIRM SHARES") of the
Common Stock, par value $0.01 per share ("STOCK") of the Company. The Company
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters, at the election of the Underwriters, up to an aggregate of
20,000,000 additional shares of Stock (the "OPTIONAL SHARES") to cover
over-allotments, if any. The Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "SHARES". Xxxxxxx, Xxxxx & Co. and Xxxxxx Brothers Inc.
are collectively referred to herein as the "REPRESENTATIVES".
The Company and the Underwriters, in accordance with the requirements of
Rule 2720 ("RULE 2720") of the National Association of Securities Dealers, Inc.
(the "NASD") and subject to the terms and conditions stated herein, also hereby
confirm the engagement of the services of Xxxxxxx, Xxxxx & Co. (the "INDEPENDENT
UNDERWRITER") as a "qualified independent underwriter" within the meaning of
paragraph (b)(15) of Rule 2720 in connection with the offering and sale of the
Shares.
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters, the Independent Underwriter and the Selling Stockholder that:
(i) A registration statement on Form S-1 (File No. 333-86910) (the
"INITIAL REGISTRATION STATEMENT") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "COMMISSION"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, to each of the other Underwriters, have been declared effective
by the Commission in such form; other than a registration statement, if
any, increasing the size of the offering (a "RULE 462(B) REGISTRATION
STATEMENT"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "ACT"), which became effective upon filing, no
other document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and the Company has not
received any notice that any stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to
Rule 424(a) of the rules and regulations of the Commission under the Act
is hereinafter called a "PRELIMINARY PROSPECTUS"; the various parts of
the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 6(a) hereof and deemed by virtue of Rule 430A under the Act to be
part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective,
are hereinafter collectively called the "REGISTRATION STATEMENT"; and
such final prospectus, in the form first filed pursuant to Rule 424(b)
under the Act, is hereinafter called the "PROSPECTUS");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
(x) information furnished to the Company or Tyco by an Underwriter
through the Representatives expressly for use therein (the "UNDERWRITERS
INFORMATION") or (y) information furnished by the Selling Stockholder
expressly for use therein (the "SELLING STOCKHOLDER INFORMATION");
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with (x) the
Underwriters Information or (y) the Selling Stockholder Information;
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(iv) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable, and all of the Shares
to be sold to the Underwriters hereunder will conform to the description
of the Stock contained in the Prospectus;
(v) Other than as set forth or contemplated in the Prospectus, no
person has the right to require the Company to register any securities
for offering and sale under the Act by reason of the filing of the
Registration Statement with the Commission or the issue and sale of the
Shares; and
(vi) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be subject to registration as an "investment
company", as such term is defined in the Investment Company Act of 1940,
as amended (the "INVESTMENT COMPANY ACT").
(b) The Company and CIT Group (Nevada) represent and warrant to, and
agree with, each of the Underwriters, the Independent Underwriter and the
Selling Stockholder that:
(i) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with (x) the
Underwriters Information or (y) the Selling Stockholder Information;
(ii) Other than as set forth or contemplated in the Prospectus,
neither the Company, CIT Group (Nevada), nor any of their respective
subsidiaries has sustained since the date of the latest audited financial
statements included in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree that would have resulted in a
material adverse change or any development involving a prospective
material adverse change, in the financial position, shareholders' equity
or results of operations of the Company and its subsidiaries taken as a
whole or CIT Group (Nevada) and its subsidiaries taken as a whole (a "CIT
MATERIAL ADVERSE EFFECT") and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock (other than as a
result of the Restructuring) or long-term debt of the Company, CIT Group
(Nevada) or any of their respective subsidiaries or any CIT Material
Adverse Effect, otherwise than as set forth or contemplated in the
Prospectus;
(iii) Each of the Company and CIT Group (Nevada) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, except where any such failure to be so qualified or in
good standing would not result in a CIT Material Adverse Effect; and each
subsidiary of the Company or CIT Group (Nevada) has been duly organized
and is validly existing and in good standing
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under the laws of its jurisdiction of organization in each case, except
where any such failure to be so qualified or in good standing would not
result in a CIT Material Adverse Effect;
(iv) The Company, CIT Group (Nevada) and their respective
subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects
except for liens, encumbrances and defects (x) described in the
Prospectus, or (y) as would not result in a CIT Material Adverse Effect;
and any real property and buildings held under lease by the Company, CIT
Group (Nevada) and their respective subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company, CIT Group (Nevada) and
their respective subsidiaries or as would not result in a CIT Material
Adverse Effect;
(v) The Company has an authorized capitalization as set forth in the
Prospectus, and, upon completion of the Restructuring, all of the issued
shares of capital stock of the Company (including the Shares to be sold
by the Selling Stockholder hereunder), will be duly and validly
authorized and issued and are fully paid and non-assessable and conform
to the description of the Stock contained in the Prospectus; and all of
the issued shares of capital stock of CIT Group (Nevada) and each
"significant subsidiary" (as such term is defined in Rule 1-02(w) of
Regulation S-X of the Securities Exchange Act of 1934, as amended) of the
Company and CIT Group (Nevada) have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for any directors'
qualifying shares) are owned directly or indirectly by the Company or CIT
Group (Nevada), as the case may be, free and clear of all liens,
encumbrances, equities or claims; the holders of issued and outstanding
capital shares of the Company are not entitled to preemptive or other
rights to acquire the Shares; there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options to
purchase from the Company, or obligations of the Company to issue, Stock
or any other class of capital shares of the Company (except as set forth
in the Prospectus under "Management--Treatment of Tyco Options and Tyco
Restricted Shares Held by CIT Employees," "Management--Long-Term Equity
Compensation Plan," "Management--Retention Agreements,"
"Management--Employee Stock Purchase Plan," "Principal and Selling
Stockholders," "Description of Capital Stock" and "Shares Eligible for
Future Sale");
(vi) Each of the Company and CIT Group (Nevada) has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to effect the Restructuring;
(vii) The issue and sale of the Shares to be sold by the Company
hereunder, the sale of the Shares to be sold by the Selling Stockholder
hereunder and the compliance by the Company and CIT Group (Nevada) with
all of the provisions of this Agreement and the consummation of the
Restructuring and the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company, CIT Group (Nevada) or any of their respective subsidiaries is a
party or by which the Company, CIT Group (Nevada) or any of their
respective subsidiaries is bound or to which any of the property or
assets of the Company, CIT Group (Nevada) or any of their respective
subsidiaries is subject, except for such conflicts, breaches, violations
or defaults as would not result in a CIT Material Adverse Effect, nor
will such action result in (y) any violation of the provisions of the
Company's Certificate of Incorporation, CIT Group (Nevada)'s Articles of
Incorporation or the By-laws of the Company or CIT Group (Nevada) or
(z) any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company,
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CIT Group (Nevada) or any of their respective subsidiaries or any of
their properties, except for such violations as would not result in a CIT
Material Adverse Effect; and no consents, approvals, authorizations,
orders, registrations, clearances or qualifications (hereinafter referred
to as "GOVERNMENTAL AUTHORIZATIONS") of or with any court or governmental
agency or body or any stock exchange authorities (each hereinafter
referred to as a "GOVERNMENTAL AGENCY") having jurisdiction over the
Company, CIT Group (Nevada) or any of their respective subsidiaries or
any of their properties are required for the consummation of the
Restructuring or the execution and delivery of this Agreement, the issue
and sale of the Shares or the consummation by the Company and the Selling
Stockholder of the transactions contemplated by this Agreement, except
the registration under the Act of the Shares, the filing of merger
agreements to effect the Restructuring and such consents, approvals,
authorizations, registrations or qualifications as may be required by the
New York Stock Exchange, by the NASD or by state or foreign securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters;
(viii) The Restructuring has been duly authorized, and this
Agreement has been duly authorized, executed and delivered, by each of
the Company and CIT Group (Nevada);
(ix) Neither the Company, CIT Group (Nevada) nor any of their
respective subsidiaries is (y) in violation of its Certificate (or
Articles) of Incorporation or By-laws or (z) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except for such
violations or defaults as would not, individually or in the aggregate,
result in a CIT Material Adverse Effect;
(x) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the captions "Material
United States Federal Tax Consequences for Non-United States
Stockholders", "Relationship with Tyco After the Offering and Related
Party Transactions", "Principal and Selling Stockholders" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are in each such case fair and
accurate summaries or descriptions, as the case may be, in all material
respects;
(xi) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company or CIT Group
(Nevada), threatened against or affecting the Company, CIT Group (Nevada)
or any of their respective subsidiaries or any of their respective
properties or to which the Company, CIT Group (Nevada) or any of their
respective subsidiaries is or may be a party or to which any property of
the Company, CIT Group (Nevada) or any of their respective subsidiaries
is or may be the subject which would individually or in the aggregate
reasonably be expected to result in a CIT Material Adverse Effect, and,
to the Company's or CIT Group (Nevada)'s knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required;
(xii) The Company, CIT Group (Nevada) and each of their respective
subsidiaries owns, possesses or has obtained all licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and has made all declarations and filings with, all federal, state, local
and other governmental authorities (including foreign regulatory
agencies), all self-regulatory organizations and all courts and other
tribunals, domestic or foreign, necessary
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to own or lease, as the case may be, and to operate its properties and to
carry on its business as conducted as of the date hereof except where the
failure to own, possess or obtain any such license, permit, certificate,
consent, order, approval or other authorization would not result in a CIT
Material Adverse Effect, and neither the Company, CIT Group (Nevada) nor
any of their respective subsidiaries has received any actual notice of
any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization except where such revocation or modification would not
result in a CIT Material Adverse Effect; and the Company, CIT Group
(Nevada) and each of their respective subsidiaries is in compliance in
all respects with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof except where the failure to
be in compliance would not result in a CIT Material Adverse Effect;
(xiii) The Company, CIT Group (Nevada) and their respective
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and
neither the Company, CIT Group (Nevada) nor any such subsidiary has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a CIT Material Adverse Effect;
(xiv) The Company, CIT Group (Nevada) and each of their respective
subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. GAAP (as defined below) and
to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(xv) The Company, CIT Group (Nevada) and their respective
subsidiaries own or possess, or can acquire on reasonable terms, all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names necessary to carry on the
business now operated by them except where the failure to own or possess
such rights, singly or in the aggregate, would not reasonably be expected
to result in a CIT Material Adverse Effect; and neither the Company, CIT
Group (Nevada) nor any of their respective subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate would
reasonably be expected to result in a CIT Material Adverse Effect;
(xvi) No relationship, direct or indirect, exists between or among
the Company, CIT Group (Nevada) or any of their respective subsidiaries
on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company, CIT Group (Nevada) or any of their respective
subsidiaries on the other hand, which is required by the Act to be
described in the Registration Statement and the Prospectus which is not
so described;
(xvii) Neither the Company nor CIT Group (Nevada) has taken or will
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(xviii) The financial statements (including the related notes and
supporting schedules) included in the Registration Statement and the
Prospectus present fairly in all material
6
respects (A) the consolidated financial condition and results of
operations and cash flows of the Company, CIT Group (Nevada), TCH and
their respective subsidiaries purported to be shown thereby, at the dates
and for the periods indicated, and (B) the unconsolidated financial
condition of the Company purported to be shown thereby at the dates
indicated. Such financial statements have been prepared in conformity
with United States generally accepted accounting principles ("U.S. GAAP")
applied on a consistent basis throughout the periods involved (except as
otherwise stated therein), except, in the case of the interim financial
statements, for the absence of complete footnote disclosure and customary
year-end adjustments; the supporting schedules, if any, included in the
Registration Statement present fairly in all material respects in
accordance with U.S. GAAP the information required to be stated therein;
and the summary and selected financial information in the Registration
Statement and the Prospectus presents fairly in all material respects, on
the basis stated in the Registration Statement and the Prospectus, the
information included therein; and
(xix) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company, CIT Group (Nevada) and their
respective subsidiaries and Tyco International, and KPMG LLP, who have
certified certain financial statements of CIT Group (Nevada) and its
subsidiaries are each independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
(c) The Selling Stockholder represents and warrants to, and agrees
with, each of the Underwriters, the Independent Underwriter and the Company
that:
(i) The Selling Stockholder has all requisite corporate power and
authority to execute, deliver and perform this Agreement;
(ii) This Agreement has been duly authorized, executed and delivered
by the Selling Stockholder;
(iii) All Governmental Authorizations of all Governmental Agencies
necessary for the execution and delivery by the Selling Stockholder of
this Agreement and for the sale and delivery of the Shares to be sold by
the Selling Stockholder hereunder have been obtained, except such
consents, approvals, authorizations, registrations or qualifications as
may be required by the New York Stock Exchange, by the NASD or by state
or foreign securities or Blue Sky laws; and, upon completion of the
Restructuring, the Selling Stockholder will have full right, power and
authority to sell, assign, transfer and deliver the Shares to be sold by
the Selling Stockholder hereunder;
(iv) The sale of the Shares to be sold by the Selling Stockholder
hereunder, the compliance by the Selling Stockholder with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Selling Stockholder is a party
or by which the Selling Stockholder is bound, or to which any of the
property or assets of the Selling Stockholder is subject, except for such
conflicts, breaches, defaults or violations that would not result in a
material adverse change or any development involving a prospective
material adverse change, in the financial position, shareholders' equity
or results of operations of the Selling Stockholder and its subsidiaries
taken as a whole (a "SELLING STOCKHOLDER MATERIAL ADVERSE EFFECT"), nor
will such action result in (y) any violation of the provisions of the
Bye-laws or Memorandum of Association of the Selling Stockholder or
(z) any violation of any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over the Selling Stockholder or
the property of the Selling Stockholder, except for such violations as
would not result in a Selling Stockholder Material Adverse Effect;
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(v) Immediately prior to the First Time of Delivery the Selling
Stockholder will have, good and valid title to the Shares to be sold by
the Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, will pass
to the several Underwriters;
(vi) Certificates representing the Shares to be sold by the Selling
Stockholder have been, or will be at the First Time of Delivery, duly and
properly endorsed in blank for transfer, accompanied by all documents,
including stock powers, duly and properly executed that are necessary to
validate the transfer of title thereto, to the Underwriters, free of any
legend, restriction on transferability, proxy, lien or claim, whatsoever;
(vii) The Selling Stockholder has not distributed and will not
distribute any prospectus or other offering materials in connection with
the offering and sale of the Shares other than any materials permitted by
the Act to be distributed;
(viii) The Selling Stockholder does not have any preemptive right,
co-sale right or right of first refusal or other similar right to
purchase any of the Shares that are to be sold by the Company to the
Underwriters pursuant to this Agreement;
(ix) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to any Bermuda taxing authority in connection
with the sale and delivery by the Selling Stockholder of the Shares to or
for the respective accounts of the Underwriters or the execution and
delivery of this Agreement;
(x) The Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares;
(xi) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in
conformity with the Selling Stockholder Information, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(xii) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, the Selling Stockholder will deliver to you prior to or at
the First Time of Delivery a properly completed and executed United
States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
(d) TCH represents and warrants to, and agrees with, each of the
Underwriters, the Independent Underwriters and the Selling Stockholder that:
(i) TCH has all requisite corporate power and authority to execute,
deliver and perform this Agreement and to effect the Restructuring;
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(ii) The Restructuring has been duly authorized, and this Agreement
has been duly authorized, executed and delivered, by TCH;
(iii) All Governmental Authorizations of all Governmental Agencies
necessary for the Restructuring and the execution and delivery by TCH of
this Agreement have been obtained;
(iv) The compliance by TCH with all of the provisions of this
Agreement and the consummation of the Restructuring and the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which TCH is a party or by which TCH is
bound, or to which any of the property or assets of TCH is subject,
except for such conflicts, breaches, defaults or violations that would
not result in a material adverse change or any development involving a
prospective material adverse change, in the financial position,
shareholders' equity or results of operations of TCH and its subsidiaries
taken as a whole (a "TCH MATERIAL ADVERSE EFFECT"), nor will such action
result in (y) any violation of the provisions of the By-laws or Articles
of Incorporation of TCH or (z) any violation of any statute or any order,
rule or regulation of any Governmental Agency having jurisdiction over
TCH or the property of TCH, except for such violations as would not
result in a TCH Material Adverse Effect; and
(v) TCH has not taken and will not take, directly or indirectly, any
action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(e) Tyco International represents and warrants to, and agrees with,
each of the Underwriters, the Independent Underwriter, the Company and CIT
Group (Nevada) that:
(i) All Governmental Authorizations of all Governmental Agencies
necessary for the execution, delivery and performance by Tyco
International of this Agreement have been obtained, except such consents,
approvals, authorizations, registrations or qualifications as may be
required by the New York Stock Exchange, by the NASD or by state or
foreign securities or Blue Sky laws; and Tyco International has all
requisite corporate power and authority to execute, deliver and perform
this Agreement;
(ii) This Agreement has been duly authorized, executed and delivered
by Tyco International;
(iii) The compliance by each of Tyco International, the Selling
Stockholder, TCH, the Company and CIT Group (Nevada) with all of the
provisions of this Agreement, the sale of the Shares to be sold by the
Selling Stockholder hereunder, the issue and sale of the Shares to be
sold by the Company hereunder and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which Tyco International or any of its
subsidiaries is a party or by which Tyco International or any of its
subsidiaries is legally bound, or to which any of the property or assets
of Tyco International or any of its subsidiaries is subject except for
such conflicts, breaches, defaults or violations as would not result in a
material adverse change or any development involving a prospective
material adverse change, in the financial position, shareholders' equity
or results of operations of Tyco International and its subsidiaries taken
as a whole (a "TYCO MATERIAL ADVERSE EFFECT"), nor will such action
result in (y) any violation of the provisions of the Bye-laws or
Memorandum of Association of Tyco International or (z) any violation of
any statute or any order, rule or regulation of any Governmental Agency
having jurisdiction over Tyco International or the property of Tyco
9
International except for such violations that would not result in a Tyco
Material Adverse Effect;
(iv) Neither Tyco International nor any of its subsidiaries has
taken and none of them will take, directly or indirectly, any action
which is designed to or which has constituted or which might reasonably
be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares; and
(v) Tyco International has no reason to believe that the
representations and warranties of the Company, CIT Group (Nevada), TCH
and the Selling Stockholder contained in this Section 1 are not true and
correct, is familiar with the Registration Statement and has no knowledge
of any material fact, condition or information not disclosed in the
Prospectus or any supplement thereto which has resulted in a CIT Material
Adverse Effect or may reasonably be expected to result in a CIT Material
Adverse Effect.
2. (a) Subject to the terms and conditions herein set forth, the Selling
Stockholder agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Selling
Stockholder, at a purchase price per share of $[ ], the respective number of
Firm Shares set forth opposite its name in Schedule I.
(b) Subject to the terms and conditions herein set forth, the Company
hereby grants to the Underwriters the right to purchase at their election up to
20,000,000 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of
the number of Firm Shares. Any such election to purchase Optional Shares may be
exercised only by written notice from the Representatives to the Company, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Company otherwise agree in writing, earlier
than two or later than ten New York Business Days (as defined below) after the
date of such notice. If any Option Shares are to be purchased, the number of
Option Shares to be purchased by each Underwriter shall be the number of Option
Shares which bears the same ratio to the aggregate number of Option Shares being
purchased as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 10 hereof) bears to the aggregate number of Firm Shares being purchased
from the Selling Stockholder by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional Shares as the Representatives in
their sole discretion shall make.
3. Upon the authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
4. (a) The Company hereby confirms its engagement of the services of the
Independent Underwriter as, and the Independent Underwriter hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of paragraph (b)(15) of Rule 2720 with respect
to the offering and sale of the Shares.
(b) The Independent Underwriter hereby represents and warrants to, and
agrees with, the Company, the Selling Stockholder and the Underwriters that with
respect to the offering and sale of the Shares as described in the Prospectus:
(i) The Independent Underwriter constitutes a "qualified independent
underwriter" within the meaning of paragraph (b)(15) of Rule 2720;
10
(ii) The Independent Underwriter has participated in the preparation of
the Registration Statement and the Prospectus and has exercised the usual
standards of "due diligence" in respect thereto;
(iii) The Independent Underwriter has undertaken the legal
responsibilities and liabilities of an underwriter under the Act,
specifically including those inherent in Section 11 thereof;
(iv) Based upon (A) a review of the Company, including an examination
of the Registration Statement, information regarding the earnings, assets,
capital structure and growth rate of the Company and other pertinent
financial and statistical data, (B) inquiries of and conferences with the
management of the Company and its counsel and independent public accountants
regarding the business and operations of the Company, (C) consideration of
the prospects for the industry in which the Company competes, estimates of
the business potential of the Company, assessments of its management, the
general condition of the securities markets, market prices of the capital
stock and debt securities of, and financial and operating data concerning,
companies believed by the Independent Underwriter to be comparable to the
Company and the demand for securities of comparable companies similar to the
Shares, and (D) such other studies, analyses and investigations as the
Independent Underwriter has deemed appropriate, and assuming that the
offering and sale of the Shares is made as contemplated herein and in the
Prospectus, the Independent Underwriter recommends, as of the date of the
execution and delivery of this Agreement, that the initial public offering
price for each share be not more than $[ ];
(v) Subject to the provisions of Section 8 hereof, the Independent
Underwriter will furnish to the Underwriters, the Company and the Selling
Stockholder at the Time of Delivery a letter, dated the Time of Delivery, in
form and substance satisfactory to the Underwriters, to the effect of
clauses (i) through (iv) above.
(c) The Independent Underwriter hereby agrees with the Company, the Selling
Stockholder and the Underwriters that, as part of its services hereunder, in the
event of any amendment or supplement to the Prospectus, the Independent
Underwriter will render services as a "qualified independent underwriter" within
the meaning of paragraph (b)(15) of Rule 2720 with respect to the offering and
sale of the Shares as described in the Prospectus as so amended or supplemented
that are substantially the same as those services being rendered with respect to
the offering and sale of the Shares as described in the Prospectus (including
those described in subsection (b) above).
(d) Each of the Company, CIT Group (Nevada), Tyco International, TCH, the
Selling Stockholder, the Underwriters and the Independent Underwriter agrees to
comply in all material respects with all of the requirements of Rule 2720
applicable to them in connection with the offering and sale of the Shares. Each
of the Company, CIT Group (Nevada), Tyco International, TCH and the Selling
Stockholder agrees to cooperate with the Underwriters and the Independent
Underwriter to enable the Underwriters to comply with Rule 2720 and the
Independent Underwriter to perform the services contemplated by this Agreement.
(e) As compensation for the services of the Independent Underwriter
hereunder, the Selling Stockholder agrees to pay the Independent Underwriter
$10,000 at the First Time of Delivery. In addition, the Selling Stockholder
agrees promptly to reimburse the Independent Underwriter for all out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred in
connection with this Agreement and the services to be rendered hereunder.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company and the Selling Stockholder prior to the Time of Delivery
(as defined below) shall be delivered by or on behalf of the Company and the
Selling Stockholder to the Representatives, through the facilities of The
Depository Trust Company ("DTC"),
11
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company and the Selling
Stockholder, as their interest may appear, to the Representatives at least
forty-eight hours in advance. The Company and the Selling Stockholder will cause
the certificates representing the Shares to be made available for checking and
packaging at least twenty-four hours prior to the Time of Delivery (as defined
below) with respect thereto at the office of DTC or its designated custodian
(the "DESIGNATED OFFICE"). It is understood and agreed by the parties hereto
that no delivery or transfer of Shares to be purchased and sold hereunder at a
Time of Delivery (as defined below) shall be effective until and unless payment
therefor has been made pursuant hereto and each of DTC and the Company and the
Selling Stockholder shall have furnished or caused to be furnished to the
Representatives, on behalf of the Underwriters at such Time of Delivery
certificates and other evidence reasonably satisfactory to the Representatives
of the execution in favor of the Underwriters of the book-entry transfer of
Shares to the respective custodians for DTC.
(b) The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on [ ], 2002 or such other
time and date as the Representatives, the Company and the Selling Stockholder
may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m.,
New York City time, on the date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional Shares, or such other time and date as the Representatives and the
Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the "FIRST TIME OF DELIVERY", such time and date for
delivery of the Optional Shares, if not the First Time of Delivery, is herein
called the "SECOND TIME OF DELIVERY", and each such time and date for delivery
is herein called a "TIME OF DELIVERY".
(c) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the cross-receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 8(p) hereof, will be delivered at the offices of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "CLOSING LOCATION"), and the Shares will be delivered at the Designated
Office, all at each Time of Delivery. A meeting will be held at the Closing
Location at 4:00 p.m., New York City time, on the New York Business Day next
preceding each Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
6. (a) The Company agrees with each of the Underwriters and with the
Independent Underwriter:
(i) To prepare the Prospectus in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day following
the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or
Prospectus prior to the last Time of Delivery which shall be disapproved by
the Representatives promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you copies thereof; to advise the Representatives and the
Independent Underwriter, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of
12
any proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or Prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions within the United States as you may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, PROVIDED that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or as a dealer of securities in any jurisdiction in
which it is not so qualified or to file a general consent to service of
process in any jurisdiction or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject;
(iii) As soon as practicable, but in no event later than 2:00 P.M., New
York City time, on the second New York Business Day succeeding the date of
this Agreement and from time to time, to furnish the Underwriters and the
Independent Underwriter with copies of the Prospectus in New York City in
such quantities as you and the Independent Underwriter may reasonably
request, and, if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Shares and if at such time
any events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the Prospectus
in order to comply with the Act, to notify you and the Independent
Underwriter and upon the request of the Representatives to prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as such Underwriter may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance, and in case
any Underwriter is required to deliver a prospectus in connection with sales
of any of the Shares at any time nine months or more after the time of issue
of the Prospectus, upon such Underwriter's request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many copies
as such Underwriter may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(iv) To furnish any and all information relating to the Company
(including its ultimate parent and its parent's subsidiaries, which
information, to the extent it relates to persons other than the Company, CIT
Group (Nevada) and their respective subsidiaries, Tyco International hereby
agrees to furnish to the Company), which the Company, the Representatives or
their respective counsel reasonably deems necessary or desirable in
connection with the preparation and filing of all amendments, post-effective
amendments and supplements to the Registration Statement, any Preliminary
Prospectus or the Prospectus in the form first used to confirm sales of
Shares or any other filing with any regulatory body or agency (including the
NASD), as well as any and all information which the Commission, the NASD or
any state securities regulatory authority may request.
(v) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option
of the Company, Rule 158);
13
(vi) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Stock, including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than (x) pursuant to any
employee benefit plan or stock option plan described in the Prospectus, or
(y) Stock issued as consideration in acquisitions, provided that the
aggregate amount of Stock issued in such acquisitions does not exceed 10% of
the Company's Stock outstanding immediately after the closing of this
offering and provided further that any recipient of 10% or more of the
shares issued as consideration in any single acquisition of a business or
entity that is not publicly held shall agree in writing to be bound by the
lock-up agreement for the remainder of the 180-day period).
(vii) To furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a consolidated balance
sheet and consolidated statements of income, shareholders' equity and cash
flows of the Company and its subsidiaries certified by independent public
accountants and prepared in conformity with U.S. GAAP) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of
the Registration Statement), to make available to its stockholders
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail prepared in accordance
with U.S. GAAP (except for the absence of complete footnote disclosure and
customary year-end adjustments);
(viii) During a period of three years from the effective date of the
Registration Statement, to furnish to the Representatives copies of all
reports or other communications (financial or other) furnished to
stockholders, and to deliver to the Representatives (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any securities exchange on which any class of
securities of the Company is listed and (ii) such additional information
concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders
generally or to the Commission);
(ix) To use the net proceeds received by it from any sale of the
Optional Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(x) Not to (and to cause its subsidiaries not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company or facilitate the
sale or resale or the Shares;
(xi) To use its best efforts to list, subject to notice of issuance,
the Shares on the New York Stock Exchange;
(xii) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 under the Act;
(xiii) If the Company elects to rely upon Rule 462(b), to file a
Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Act; and
14
(xiv) To assume all assets, rights, liabilities and obligations of CIT
Group (Nevada) and TCH, as of the time of each of the mergers contemplated
by, and pursuant to, the Restructuring, including without limitation, the
rights and obligations contained herein.
(b) Each of CIT Group (Nevada), Tyco International, TCH and the Selling
Stockholder agrees with each of the Underwriters and with the Independent
Underwriter:
(i) Not to (and to cause its affiliates (as such term is defined in
Rule 1.02(b) of Regulation S-X) not to) take, directly or indirectly, any
action which is designed to or which constitutes or which might reasonably
be expected to cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale or the
Shares;
(ii) To immediately notify the Representatives if any event occurs,
relating to Tyco International or the Selling Stockholder (and prior to the
First Time of Delivery, CIT Group (Nevada) or TCH), as the case may be, or
of any change in information relating to Tyco International or the Selling
Stockholder (and prior to the First Time of Delivery, CIT Group (Nevada) or
TCH), which makes it necessary to supplement or amend the Registration
Statement or the Prospectus such that the Registration Statement and the
Prospectus does not or will not contain an 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;
(iii) To furnish any and all information relating to Tyco International
or the Selling Stockholder (and prior to the First Time of Delivery, CIT
Group (Nevada) or TCH), as the case may be, which CIT Group (Nevada), Tyco
International, TCH or the Selling Stockholder, as the case may be, the
Representatives or their respective counsel reasonably deems necessary or
desirable in connection with the preparation and filing of all amendments,
post-effective amendments and supplements to the Registration Statement, any
Preliminary Prospectus or the Prospectus in the form first used to confirm
sales of Stock or any other filing with any regulatory body or agency
(including the NASD), as well as any and all information which the
Commission, the NASD or any state securities regulatory authority may
request; and
(iv) The Firm Shares to be sold by the Selling Stockholder are subject
to the interest of the several Underwriters, and the obligations of the
Selling Stockholder hereunder are irrevocable and shall not be terminated,
except as provided in this Agreement, by any act of the Selling Stockholder,
by operation of law, whether by the liquidation, dissolution or merger of
the Selling Stockholder, or by the occurrence of any other event. If the
Selling Stockholder should liquidate, dissolve, be a party to a merger or if
any other such event should occur before the delivery of the Firm Shares
hereunder, certificates for the Firm Shares will be delivered in accordance
with the terms and conditions of this Agreement as if such liquidation,
dissolution, merger or other event had not occurred.
7. Each of the Company, CIT Group (Nevada), Tyco International, TCH and the
Selling Stockholder covenants and agrees with the several Underwriters and the
Independent Underwriter that the Selling Stockholder, Tyco International and the
Company will pay or cause to be paid (i) the fees, disbursements and expenses of
the Company's, CIT Group (Nevada)'s, the Selling Stockholder's, TCH's and Tyco
International's respective counsel (including local and special counsel) and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters, the Independent Underwriter and dealers (including
postage, air freight charges and charges for counting and packaging except as
provided in Section 6(a)(iii) hereof); (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including compilations thereof requested by the Company, the
15
Selling Stockholder or Tyco International) and any other documents in connection
with the offering, purchase, sale and delivery of the Shares; (iii) all
reasonable expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in
Section 6(a)(ii) hereof, including the reasonable fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) all reasonable fees and expenses in
connection with listing the Shares on the New York Stock Exchange; (v) the
filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(vi) to Imagination (GIC) Ltd. ("IGL") for the reimbursement of transportation
and other expenses incurred by IGL on behalf of Company officers and employees
in connection with presentations to prospective purchasers of the Shares, and
the Company's pro rata share of IGL's overhead costs incurred in connection with
such presentations; (vii) the fees and expenses of the Authorized Agent (as
defined in Section 16 hereof); (viii) the cost of preparing stock certificates;
(ix) the cost and charges of any transfer agent or registrar; and (x) all other
costs and expenses incident to the performance of their obligations hereunder
which are not otherwise specifically provided for in this Section 7. In
connection with clause (viii) of the preceding sentence, the Representatives
agree to pay New York State stock transfer tax, and the Selling Shareholder
agrees to reimburse the Representatives for associated carrying costs if such
tax payment is not rebated on the day of payment and for any portion of such tax
payment not rebated. It is understood, however, that, except as provided in this
Section and Sections 10 and 13 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, stock transfer
taxes on resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make. The Selling Stockholder, Tyco
International and the Company hereby acknowledge that, as among themselves, the
foregoing expenses will be allocated between Tyco International and the Company
as they agree.
8. The respective obligations of the Underwriters and the Independent
Underwriter hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company, CIT Group
(Nevada), Tyco International, TCH and the Selling Stockholder herein are, at and
as of such Time of Delivery, true and correct, the condition that the Company,
CIT Group (Nevada), Tyco International, TCH and the Selling Stockholder shall
have performed all of their obligations hereunder theretofore to be performed,
the condition (in the case of the Underwriters) that the Independent Underwriter
shall have furnished to the Underwriters the letter referred to in clause (v) of
Section 4(b) hereof and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 6(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to such matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxx X. Xxxxxx, Executive Vice President and General Counsel for the
Company, shall have furnished to you his written opinion, dated such Time of
Delivery, in form and substance reasonably satisfactory to the Representatives,
substantially to the effect set forth in Exhibit A hereto;
16
(d) Xxxxxx, Xxxxxx & Xxxxxxxxx, counsel for the Company, the Selling
Stockholder and Tyco International, shall have furnished to you their written
opinion, dated such Time of Delivery, in form and substance reasonably
satisfactory to the Representatives, substantially to the effect set forth in
Exhibit B hereto;
(e) Xxxxxxx Xxxxxxxx & Xxxxx, Bermuda counsel for the Selling Stockholder
and Tyco International, shall have furnished to you their written opinion, dated
such Time of Delivery, in form and substance reasonably satisfactory to the
Representatives, substantially to the effect set forth in Exhibit C hereto;
(f) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement, PricewaterhouseCoopers LLP and KPMG LLP shall have
furnished to you a letter, in form and substance reasonably satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters and the Independent Underwriter, addressed to the
Underwriters and the Independent Underwriter and dated the date hereof
(i) confirming that they are independent public accountants within the meaning
of the Act and are in compliance with the applicable requirements relating to
the qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, and (ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than three days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters ordinarily
covered by accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(g) With respect to the letter of PricewaterhouseCoopers LLP referred to in
the preceding paragraph and delivered to the Underwriters and the Independent
Underwriter concurrently with the execution of this Agreement (the "INITIAL
LETTER"), the Underwriters and the Independent Underwriter shall have received a
letter (the "BRING-DOWN LETTER") of such accountants, addressed to the
Underwriters and the Independent Underwriter and dated the date of the Time of
Delivery (i) confirming that they are independent public accountants within the
meaning of the Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than three New York Business Days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect to
the financial information and other matters covered by the initial letter, and
(iii) confirming in all material respects the conclusions and findings set forth
in the initial letter.
(h) (i) Neither the Company, CIT Group (Nevada) nor any of their respective
subsidiaries shall have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company, CIT Group (Nevada) or any of their respective
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company, CIT Group (Nevada)
and their respective subsidiaries, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
17
(i) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded debt securities of the Company or CIT Group (Nevada) by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the debt
securities of the either the Company or CIT Group (Nevada) (except in the case
of this clause (ii), to the extent consistent with previous public announcements
by such organization);
(j) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in securities of the Company on the New York Stock
Exchange; (iii) a change or development involving a prospective change in
Bermuda taxation affecting the Selling Stockholder, the Shares or the transfer
thereof or the imposition of exchange controls by the United States or Bermuda;
(iv) a general moratorium on commercial banking activities declared by either
Federal or New York State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States;
(v) the outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, or (vi) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (v) or (vi) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Time of Delivery
on the terms and in the manner contemplated in the Prospectus;
(k) The Shares to be sold by the Company and the Selling Stockholder at
such Time of Delivery shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange;
(l) The Company shall have obtained and delivered to the Underwriters
executed copies of an agreement from each of the individuals listed on
Schedule II hereto in the form set forth in Annex A hereto;
(m) The Company shall have complied with the provisions of
Section 6(a)(iii) hereof with respect to the furnishing of prospectuses on the
New York Business Day following the execution of this Agreement;
(n) The Restructuring shall have been completed; and
(o) Each of the Company, Tyco International and the Selling Stockholder
shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company, Tyco International and the Selling
Stockholder, respectively, reasonably satisfactory to the Representatives as to
the accuracy of the representations and warranties of the Company, Tyco
International and the Selling Stockholder, respectively, herein at and as of
such Time of Delivery, as to the performance by the Company, Tyco International
and the Selling Stockholder of all of their respective obligations hereunder to
be performed at or prior to such Time of Delivery, and as to such other matters
as you may reasonably request, and the Company shall have furnished or caused to
be furnished certificates as to the matters set forth in subsections (a), (i),
(j) (but only as to securities issued by the Company) and (l) of this
Section 8, and as to such other matters as you may reasonably request.
9. The Independent Underwriter hereby consents to the references to it as
set forth under the caption "Underwriting" in the Prospectus and in any
amendment or supplement thereto made in accordance with Section 6(a) hereof.
10. (a) Each of the Company, CIT Group (Nevada), Tyco International and the
Selling Stockholder, jointly and severally, will indemnify and hold harmless
each Underwriter and the Independent Underwriter against any losses, claims,
damages, liabilities or action, joint or several, to which such Underwriter or
the Independent Underwriter, as the case may be, may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in
18
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (B) in any materials or information
provided to investors by, or with the approval of, the Company in connection
with the marketing of the offering of the Shares, including any roadshow or
investor presentations made to investors by the Company (whether in person or
electronically) (the "MARKETING MATERIALS"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Marketing
Materials, any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Shares or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or
(ii) above, and will reimburse each Underwriter or the Independent Underwriter,
as the case may be, for any legal or other expenses reasonably incurred by such
Underwriter or the Independent Underwriter, as the case may be, in connection
with investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company, CIT Group (Nevada), Tyco
International and the Selling Stockholder shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with the Underwriters Information or constitutes a reference to the
Independent Underwriter consented to by it pursuant to Section 9 hereof. The
Company, CIT Group (Nevada), Tyco International and the Selling Stockholder
hereby acknowledge that, as among themselves, any indemnification liability
under this Section 10(a) is to be borne by them as provided in the Separation
Agreement between Tyco International and the Company dated June [ ], 2002.
(b) Each Underwriter will indemnify and hold harmless the Company, CIT
Group (Nevada), Tyco International, the Selling Stockholder and the Independent
Underwriter, as the case may be, against any losses, claims, damages or
liabilities to which the Company, CIT Group (Nevada), Tyco International, the
Selling Stockholder and the Independent Underwriter, as the case may be, may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with the Underwriters
Information; and will reimburse the Company, CIT Group (Nevada), Tyco
International, the Selling Stockholder and the Independent Underwriter, as the
case may be, for any legal or other expenses reasonably incurred by the Company,
CIT Group (Nevada), Tyco International, the Selling Stockholder and the
Independent Underwriter, as the case may be, in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) The Independent Underwriter will indemnify and hold harmless the
Company, CIT Group (Nevada), Tyco International, the Selling Stockholder and
each Underwriter against any losses, claims, damages or liabilities to which the
Company, CIT Group (Nevada), Tyco International, the Selling Stockholder or such
Underwriter, as the case may be, may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein
19
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by the
Independent Underwriter expressly for use therein or constitutes a reference to
the Independent Underwriter consented to by it pursuant to Section 9 hereof; and
will reimburse the Company, CIT Group (Nevada), Tyco International, the Selling
Stockholder or each Underwriter, as the case may be, for any legal or other
expenses reasonably incurred by the Company, CIT Group (Nevada), Tyco
International, the Selling Stockholder or each Underwriter, as the case may be,
in connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
hereunder to the extent it is not materially prejudiced as a result thereof and,
in any event, shall not relieve it from any liability which it may have
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, which in the case of the
Underwriters shall be selected jointly by the Representatives, in the case of
the Independent Underwriter shall be selected by the Independent Underwriter and
in the case of the Company, CIT Group (Nevada), Tyco International and the
Selling Stockholder shall be selected by the Company and Tyco International (and
which 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 shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. If the
indemnifying party does not assume the defense of such action, the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to one
separate firm of local attorneys in each such jurisdiction) at any time for all
such indemnified parties, which firms shall be designated in writing by the
Representatives, if the indemnified parties under this Section consist of any
Underwriter or any of their respective controlling persons, or by the Company,
CIT Group (Nevada), Tyco International and the Selling Stockholder, if the
indemnified parties under this Section consist of the Company, CIT Group
(Nevada), Tyco International and the Selling Stockholder or any of the
Company's, CIT Group (Nevada)'s, Tyco International's or the Selling
Stockholder's directors, officers or controlling persons. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
the consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
20
(e) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company, CIT Group (Nevada), Tyco International or the Selling
Stockholder on the one hand and either the Underwriters or the Independent
Underwriter on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company, CIT Group (Nevada), Tyco International or the Selling
Stockholder on the one hand and either the Underwriters or the Independent
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company, CIT Group (Nevada), Tyco International or the
Selling Stockholder on the one hand and either the Underwriters or the
Independent Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this Agreement (before deducting expenses) received by the Company and the
Selling Stockholder, the total underwriting discount and commissions payable to
the Underwriters as set forth in the table on the cover page of the Prospectus
and the fee payable to the Independent Underwriter pursuant to the first
sentence of Section 4(e) hereof, respectively, bear to the sum of the total
proceeds from the sale of the Shares (before deducting expenses) in the offering
and the fee payable to the Independent Underwriter pursuant to the first
sentence of Section 4(e) hereof. 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, CIT Group (Nevada), Tyco
International or the Selling Stockholder on the one hand or either the
Underwriters or the Independent Underwriter on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, CIT Group (Nevada), Tyco
International and the Selling Stockholder, and the Independent Underwriter and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (e) were determined by pro rata allocation (even if
the Underwriters and the Independent Underwriter were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (e), no Underwriter nor the Independent Underwriter shall be required
to contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter or the
Independent Underwriter, as the case may be, has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company, CIT Group (Nevada), Tyco International
and the Selling Stockholder under this Section 10 shall be in addition to any
liability which the Company, CIT Group (Nevada), Tyco International and the
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter or the
21
Independent Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 10 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls the Company, CIT Group (Nevada), Tyco International or the
Selling Stockholder within the meaning of the Act or the Independent Underwriter
within the meaning of the Act; and the obligations of the Independent
Underwriter under this Section 10 shall be in addition to any liability which
the Independent Underwriter may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any, who
controls the Company, CIT Group (Nevada), Tyco International or the Selling
Stockholder or any Underwriter within the meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, the
Representatives may in their discretion arrange for you or another party or
other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter, the Representatives do
not arrange for the purchase of such Shares, then the Selling Stockholder and
the Company shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to the
Representatives to purchase such Shares on such terms. In the event that, within
the respective prescribed periods, the Representatives notify the Selling
Stockholder and the Company that the Representatives have so arranged for the
purchase of such Shares, or the Selling Stockholder and the Company notify the
Representatives that they have so arranged for the purchase of such Shares, the
Representatives or the Selling Stockholder and the Company shall have the right
to postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Selling Stockholder and the Company agree to file promptly
any amendments to the Registration Statement or the Prospectus which in the
reasonable opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section 11 with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives, the
Selling Stockholder and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all of the Shares to be purchased at
such Time of Delivery, then the Selling Stockholder and the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the Representatives, the
Selling Stockholder and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh
of the aggregate number of all of the Shares to be purchased at such Time of
Delivery, or if the Selling Stockholder and the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional Shares)
shall
22
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, Tyco International or the Selling Stockholder,
except for the expenses to be borne by the Company and Tyco International and
the Underwriters as provided in Sections 7 and 13 hereof and the indemnity and
contribution agreements in Section 10 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and
other statements of the Company, CIT Group (Nevada), Tyco International, TCH and
the Selling Stockholder, and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, the Independent Underwriter or any controlling person of any
Underwriter, the Independent Underwriter, the Company, CIT Group (Nevada), Tyco
International, TCH or the Selling Stockholder, or any officer or director or
controlling person of the Company, CIT Group (Nevada), Tyco International, TCH
or the Selling Stockholder, and shall survive delivery of and payment for the
Shares.
13. If this Agreement shall be terminated pursuant to Section 11 hereof,
none of the Company, Tyco International or the Selling Stockholder shall then be
under any liability to any Underwriter or the Independent Underwriter except as
provided in the second sentence in Section 4(e) hereof and Sections 7 and 10
hereof; but, if for any other reason any Shares are not delivered by or on
behalf of the Company or the Selling Stockholder as provided herein, the Company
and Tyco International will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company, Tyco
International and the Selling Stockholder shall then be under no further
liability to any Underwriter or the Independent Underwriter in respect of the
Shares not so delivered except as provided in the second sentence of
Section 4(e) hereof and Sections 7 and 10 hereof.
14. In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representatives jointly or by Xxxxxxx, Xxxxx &
Co. or Xxxxxx Brothers Inc. on behalf of you as the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx,
Xxxxx & Co., Xxx Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department and Xxxxxx Brothers Inc., 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Registration Department, Fax
(000) 000-0000, with a copy to: Xxxxxx Brothers Inc. 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel; if to the Independent Underwriter
shall be delivered or sent by mail, letter or facsimile transmission to the name
and address of the Independent Underwriter; if to the Company, CIT Group
(Nevada) and TCH shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; and if to Tyco International and the Selling
Stockholder shall be delivered or sent by mail, telex or facsimile transmission
to The Zurich Centre, Second Floor, Suite 201, 90 Xxxxx Xxx Xxxx, Xxxxxxxx XX00,
Xxxxxxx, Xxxxxxxxx: General Counsel, Fax 000-000-0000; PROVIDED, HOWEVER, that
any notice to an Underwriter pursuant to Section 10(d) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Independent Underwriter, the Company, CIT Group
(Nevada), Tyco International, TCH and the
23
Selling Stockholder, and, to the extent provided in Sections 10 and 12 hereof,
the officers and directors of the Underwriters, the Independent Underwriter, the
Company, CIT Group (Nevada), Tyco International, TCH and the Selling Stockholder
and each person who controls an Underwriter, the Independent Underwriter, the
Company, CIT Group (Nevada), Tyco International, TCH or the Selling Stockholder,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
16. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company, CIT Group (Nevada), Tyco
International, TCH or the Selling Stockholder brought by any Underwriter or the
Independent Underwriter or by any person who controls any Underwriter or the
Independent Underwriter arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in any New York court,
(ii) waives, to the fullest extent it may effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the exclusive jurisdiction of such courts in any such suit,
action or proceeding. Each of Tyco International and the Selling Stockholder
irrevocably waives any immunity to jurisdiction to which it may otherwise be
entitled or become entitled (including sovereign immunity, immunity to
pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or based on this Agreement
or the transactions contemplated hereby which is instituted in any New York
court or in any competent court in Bermuda. Each of Tyco International and the
Selling Stockholder has appointed CT Corporation, New York, New York, each as
its respective authorized agent (the "AUTHORIZED AGENT") upon whom process may
be served in any such action arising out of or based on this Agreement or the
transactions contemplated hereby which may be instituted in any New York court
by any Underwriter or by any person who controls any Underwriter, expressly
consents to the jurisdiction of any such court in respect of any such action,
and waives any other requirements of or objections to personal jurisdiction with
respect thereto. Such appointment shall be irrevocable. Each of Tyco
International and the Selling Stockholder represents and warrants that the
Authorized Agent has agreed to act as such agent for service of process and
agrees to take any and all action, including the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to Tyco International or the Selling Stockholder,
as the case may be, shall be deemed, in every respect, effective service of
process upon Tyco International or the Selling Stockholder, as the case may be.
17. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, each of Tyco International and the Selling
Stockholder will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as between (i) the rate of exchange at
which the United States dollar amount is converted into the judgment currency
for the purpose of such judgment or order and (ii) the rate of exchange at which
an Underwriter is able to purchase United States dollars with the amount of the
judgment currency actually received by such Underwriter. The foregoing indemnity
shall constitute a separate and independent obligation of each of Tyco
International and the Selling Stockholder and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
18. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
19. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
20. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
24
If the foregoing is in accordance with your understanding, please sign and
return to us one each for the Company, CIT Group (Nevada), Tyco International,
TCH and the Selling Stockholder and for each of the Representatives plus one for
each counsel, of any counterparts hereof, and upon the acceptance hereof by the
Representatives and the Independent Underwriter, on behalf of each of the
Underwriters and the Independent Underwriter, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Independent Underwriter, the Company, CIT Group (Nevada), Tyco International,
TCH and the Selling Stockholder. It is understood that the Representatives'
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company, CIT Group (Nevada), Tyco International,
TCH and the Selling Stockholder for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
CIT Group Inc. (Del)
By:
-----------------------------------------
Name:
Title:
CIT Group Inc.
By:
-----------------------------------------
Name:
Title:
Tyco International Ltd.
By:
-----------------------------------------
Name:
Title:
Tyco Capital Ltd.
By:
-----------------------------------------
Name:
Title:
Tyco Capital Holding, Inc.
By:
-----------------------------------------
Name:
Title:
25
Accepted as of the date hereof at New York, New York
Xxxxxxx, Xxxxx & Co.
By:
---------------------------------------
Name:
Title:
Xxxxxx Brothers Inc.
By:
---------------------------------------
Name:
Title:
Xxxxxxx, Xxxxx & Co., as Independent Underwriter
By:
---------------------------------------
Name:
Title:
26
SCHEDULE I
OPTIONAL
SHARES TO BE
PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- --------------
Xxxxxxx, Sachs & Co.........................................
Xxxxxx Brothers Inc.........................................
X.X. Xxxxxx Securities Inc..................................
Banc of America Securities LLC..............................
Credit Suisse First Boston Corporation......................
Xxxxxxx Xxxxx Xxxxxx Inc....................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated..............................................
Bear, Xxxxxxx & Co. Inc.....................................
CIBC World Markets Corp.....................................
Deutsche Bank Securities Inc................................
Wachovia Securities, Inc....................................
UBS Warburg LLC.............................................
----------- ----------
Total................................................... 200,000,000 20,000,000
=========== ==========
27
