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EXHIBIT 1
THE HERTZ CORPORATION
_______ Shares of Class A Common Stock, par value $0.01 per share
Underwriting Agreement
___________, 1997
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx Brothers Inc.
Salomon Brothers Inc
Xxxxx Xxxxxx Inc.
As Representatives of the several
underwriters listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Hertz Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters"), for whom
you are acting as representatives (the "Representatives") an aggregate of
__________ shares of Class A Common Stock, par value $0.01 per share, of the
Company (the "Underwritten Shares") and, for the sole purpose of covering
over-allotments in connection with the sale of the Underwritten Shares, at the
option of the Underwriters, up to an additional __________ shares (the "Option
Shares") of Class A Common Stock, par value $0.01 per share, of the Company.
The Underwritten Shares and the Option Shares are herein referred to as the
"Shares". The shares of Common Stock, par value $0.01 per share, of the Company
to be outstanding after giving effect to the sale of the Shares are herein
referred to as the "Stock". The Company is a wholly- owned subsidiary of Ford
Motor Company, a Delaware corporation ("Ford"). As used herein, "Principal
Subsidiaries" shall mean those subsidiaries of the Company named in Schedule II
hereto and subsidiaries of the Company shall include the Principal
Subsidiaries.
It is understood and agreed to by all parties that the Company
and Ford are concurrently entering into an agreement (the "International
Underwriting Agreement") providing for the sale by the Company of up to a total
of ________ shares of Stock (the
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"International Shares"), including the over-allotment option thereunder,
through arrangements with certain underwriters outside the United States (the
"International Underwriters"), for whom X.X. Xxxxxx Securities Ltd., Xxxxxxx
Sachs International, Xxxxxx Brothers International (Europe), Salomon Brothers
International Limited, Xxxxx Xxxxxx Inc., ABN AMRO Rothschild, Banque
Nationale de Paris, Commerzbank Aktiengesellschaft, Credit Lyonnais and
Xxxxxx Xxxxxxxx & Co. Limited are acting as international representatives.
Anything herein or therein to the contrary notwithstanding, the respective
closings under this Agreement and the International Underwriting Agreement are
hereby expressly made conditional on one another. The Underwriters hereunder
and the International Underwriters are simultaneously entering into an
Agreement between U.S. and International Underwriting Syndicates (the
"Agreement Between Syndicates") which provides, among other things, for the
transfer of shares of Stock between the two syndicates. Two forms of
prospectus are to be used in connection with the offering and sale of shares of
Stock contemplated by the foregoing, one relating to the Shares hereunder and
the other relating to the International Shares. The latter form of prospectus
will be identical to the former except for certain substitute pages. Except as
used in Sections 3, 4, 5, 10 and 12 herein, and except as the context may
otherwise require, references hereinafter to the Shares shall include all the
shares of Stock which may be sold pursuant to either this Agreement or the
International Underwriting Agreement, and, except as the context may otherwise
require, references herein to any prospectus whether in preliminary or final
form, and whether as amended or supplemented, shall include both the U.S. and
the international versions thereof.
1. The Company represents and warrants to, and agrees
with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No.
333-22517) in respect of the Shares has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than the Current Report on Form 8-K dated February 28, 1997 and the
registration statement on Form 8-A dated March __, 1997 filed by the
Company, no other document with respect to such registration statement has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), is hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, 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
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to be part of the registration statement at the time it was declared
effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus");
(b) 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
information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(c) 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 information furnished in
writing to the Company by an Underwriter through you expressly for use
therein;
(d) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any of
its subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary course of
business, which are material to the Company and its subsidiaries,
considered as a whole, and there has not been any material adverse change,
on a consolidated basis, in the capital stock, short-term debt or long-term
debt of the Company and its subsidiaries, or any material adverse change in
the financial condition, business, business prospects or results of
operations of the Company and its subsidiaries, considered as a whole;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the
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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 to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the financial condition or results of operations of the
Company and its subsidiaries, considered as a whole; and each subsidiary of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
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 to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries,
considered as a whole;
(f) The Company will have, not later than the First Time
of Delivery (as defined in Section 5 hereof), an authorized capitalization
as set forth in the Prospectus; all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof contained in
the Prospectus; all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable; and the Company owns directly or
indirectly all of the outstanding shares of capital stock of each of the
Principal Subsidiaries, free and clear of all liens, encumbrances, equities
or claims;
(g) This Agreement and the International Underwriting
Agreement have each been duly authorized, executed and delivered on behalf
of the Company;
(h) The Shares to be issued and sold by the Company to
the Underwriters hereunder and under the International Underwriting
Agreement have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein and in the
International Underwriting Agreement, will be duly and validly issued and
fully paid and non-assessable and will conform to the description of the
Stock contained in the Prospectus;
(i) The issue and sale of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
compliance by the Company with all of the provisions of this Agreement and
the International Underwriting Agreement and the consummation of the
transactions herein and therein 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 (in each case material to the Company and its
subsidiaries, considered as a
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whole), any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such action result in any violation
of the provisions of the certificate of incorporation or by-laws of the
Company or any of its subsidiaries, nor will such action result in any
violation (in each case material to the Company and its subsidiaries,
considered as a whole) of any applicable statute or any applicable order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement and the
International Underwriting Agreement, except (i) the registration under the
Act of the Shares; (ii) the registration of the Shares under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); (iii) such consents,
approvals or authorizations as may be required under any concession
agreements with any airport authorities; (iv) the listing of the Shares on
the New York Stock Exchange (the "Exchange"); and (v) such consents,
approvals, authorizations, registrations or qualifications as may be
required under securities or Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(j) Neither the Company nor any of its subsidiaries is
(i) in violation of its certificate of incorporation or by-laws, (ii) in
default in the performance or observance of any material 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 or (iii)
in violation of any applicable statute or any applicable order, rule or
regulation (including, without limitation, those relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws")) of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties, except, in
the case of Clause (i), with respect to the Company's subsidiaries which
are not Principal Subsidiaries, where such violation would not have a
material adverse effect on the financial condition or results of operations
of the Company and its subsidiaries, considered as a whole, and except, in
the case of Clauses (ii) and (iii), where such default or violation would
not have a material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as a whole;
(k) The Company and its subsidiaries each owns or
possesses all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations (including, without limitation,
those relating to Environmental Laws)
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issued by the appropriate state, federal or foreign regulatory agencies or
bodies (collectively, "Governmental Licenses") necessary to carry on its
business as presently conducted, with such exceptions as do not have a
material adverse effect on the financial condition or results of operations
of the Company and its subsidiaries, considered as a whole, and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding would have a material adverse effect on the
financial condition or results of operations of the Company and its
subsidiaries, considered as a whole;
(l) 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 caption
"Certain United States Tax Consequences to Non-United States Holders",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate in all material respects;
(m) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject in which there is
a reasonable possibility of an adverse decision which, individually or in
the aggregate, could have a material adverse effect or prospective material
adverse effect, on the financial condition or results of operations of the
Company and its subsidiaries considered as a whole; and, to the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(n) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(o) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
and
(p) The financial statements, including the notes
thereto, of the Company and its subsidiaries included in the Registration
Statement and Prospectus present fairly the financial condition of the
Company and its subsidiaries as of the dates indicated and the results of
operations and changes in financial position for the periods therein
specified in conformity with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
stated therein). Coopers & Xxxxxxx L.L.P., who have certified certain
financial statements of the Company and its
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subsidiaries included in the Registration Statement and the Prospectus, as
amended or supplemented, are, to the best knowledge of the Company,
independent public accountants with respect to the Company and its
subsidiaries as required by the Act and the rules and regulations of the
Commission thereunder.
2. Ford represents and warrants to, and agrees with,
each of the Underwriters that:
(a) Ford has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware;
(b) All issued shares of capital stock of the Company are
owned directly by Ford, free and clear of all liens, encumbrances, equities
or claims;
(c) This Agreement and the International Underwriting
Agreement have each been duly authorized, executed and delivered on behalf
of Ford;
(d) The issue and sale of the Shares by the Company
hereunder and under the International Underwriting Agreement, the
compliance by the Company and Ford with all of the provisions of this
Agreement and the International Underwriting Agreement and the consummation
of the transactions herein and therein 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 (in each case material to Ford and its
subsidiaries, considered as a whole), any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which Ford
is a party or by which Ford is bound or to which any of the property or
assets of Ford is subject, nor will such action result in any violation of
the provisions of the certificate of incorporation or by-laws of Ford, nor
will such action result in any violation (in each case material to Ford and
its subsidiaries, considered as a whole) of any applicable statute or any
applicable order, rule or regulation of any court or governmental agency or
body having jurisdiction over Ford or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company and Ford of
the transactions contemplated by this Agreement and the International
Underwriting Agreement, except (i) the registration under the Act of the
Shares; (ii) the registration of the Shares under the Exchange Act; (iii)
such consents, approvals or authorizations as may be required under any
concession agreements with any airport authorities; (iv) the listing of the
Shares on the Exchange; and (v) such consents, approvals, authorizations,
registrations or qualifications as may be required under securities or Blue
Sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters and the International
Underwriters; and
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(e) 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 (i) offer, sell, contract to sell or otherwise dispose
of any securities of the Company which are substantially similar to the
Shares, 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 or (ii) enter into any swap,
option, future, forward or other agreement that transfers, in whole or in
part, the economic consequence of ownership of Stock or any securities
substantially similar to the Shares, without the prior written consent of
X.X. Xxxxxx Securities Inc.
3. Subject to the terms and conditions herein set forth,
(a) the Company agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price per share of $_____, the number of Underwritten
Shares set forth opposite the name of such Underwriter in Schedule I hereto and
(b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Option Shares as provided below, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in Clause (a) of this Section 3, that
portion of the number of Option Shares as to which such election shall have
been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Option Shares by a fraction, the
numerator of which is the maximum number of Option Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Option Shares which all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to
purchase at their election up to _________ Option Shares, at the purchase price
per share set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Underwritten Shares. Any such election to
purchase Option Shares may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Option Shares to be purchased
and the date on which such Option Shares are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 5 hereof) or, unless you and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
4. Upon the authorization by you of the release of the
Underwritten Shares and, if applicable, the Option Shares, the several
Underwriters propose to offer the Underwritten Shares and, if applicable, the
Option Shares for sale upon the terms and conditions set forth in the
Prospectus.
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5. (a) The Shares to be purchased by each Underwriter
hereunder, in temporary or definitive form, and in such authorized
denominations and registered in such names as X.X. Xxxxxx Securities Inc. may
request upon at least forty-eight hours prior notice to the Company, shall be
delivered by or on behalf of the Company to you, for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire or interbank transfer to an account specified
by the Company in immediately available funds. The Company 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 X.X. Xxxxxx Securities Inc., 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated Office"). The time and
date of such delivery and payment shall be, with respect to the Underwritten
Shares, 9:30 a.m., New York City time, on ________, 1997 or such other time and
date as you and the Company may agree upon in writing, and, with respect to the
Option Shares, 9:30 a.m., New York time, on the date specified by you in the
written notice given by you of the Underwriters election to purchase such
Option Shares, or such other time and date as you and the Company may agree
upon in writing. Such time and date for delivery of the Underwritten Shares
are herein called the "First Time of Delivery", such time and date for delivery
of the Option Shares, if not the First Time of Delivery, are herein called the
"Second Time of Delivery", and each such time and date for delivery are herein
called a "Time of Delivery".
(b) 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(j) hereof, will be
delivered at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (the "Closing Location"), and the Shares will be delivered
at the Designated Office, all at such Time of Delivery. A meeting will be held
at the Closing Location at 3:00 p.m., New York City time, on the New York
Business Day next preceding such 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. For the purposes of this
Section 5 "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. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form reasonably
approved by you 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 which shall be reasonably disapproved by you
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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 with
copies thereof; to advise you, 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
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;
(b) 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 states or territories of 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 to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as you may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the
Shares and if at such time either (i) any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or (ii) 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 upon your request to prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as you 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 your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as
you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
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(d) To make generally available to security holders of
the Company 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 thereunder (including, at
the option of the Company, Rule 158);
(e) 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 (i) offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder and under the International Underwriting
Agreement, any securities of the Company which are substantially similar to
the Shares, 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 or (ii) enter
into any swap, option, future, forward or other agreement that transfers,
in whole or in part, the economic consequence of ownership of Stock or any
securities substantially similar to the Shares (other than (i) pursuant to
employee stock option plans existing on, or upon the conversion or exchange
of convertible or exchangeable securities outstanding as of, the date of
this Agreement and (ii) the issuance of Stock and Class B Common Stock, par
value $0.01 per share, of the Company in connection with the transactions
described in the Prospectus), without the prior written consent of X.X.
Xxxxxx Securities Inc.;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year, commencing with the fiscal year ended
December 31, 1997, an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants);
(g) During a period of two years from the effective date
of the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) generally furnished to
stockholders, and to deliver to you as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and during a period of one year from
the effective date of the Registration Statement, to furnish X.X. Xxxxxx
Securities Inc. such additional information concerning the business and
financial condition of the Company as X.X. Xxxxxx Securities Inc. 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 stockholders
generally or to the Commission), it being understood that such information
shall be subject to such confidentiality and use restrictions as may be
agreed upon from time to time and that such information shall not
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require the preparation of reports or other documents not otherwise
prepared by the Company in the normal course of its business;
(h) To use the net proceeds received by it from the sale
of the Shares pursuant to this Agreement and the International Underwriting
Agreement in the manner specified in the Prospectus under the caption "Use
of Proceeds"; and
(i) To use its best efforts to list, subject to notice of
issuance, the Shares on the Exchange.
7. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants
in connection with the registration of the 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 and dealers; (ii) the cost of duplicating any
Agreement among Underwriters, this Agreement, the International Underwriting
Agreement, the Agreement between Syndicates, the Selling Agreement and the Blue
Sky Memorandum; (iii) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws or, to the extent
applicable, the state insurance securities laws as provided in Section 6(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky Memorandum; (iv) all fees and expenses in connection with listing the
Shares on the Exchange; (v) the filing fees incident to securing any required
review by the NASD of the terms of the sale of the Shares; (vi) the cost of
preparing stock certificates; (vii) the cost and charges of any transfer agent
or registrar; and (viii) all other reasonable costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 9 and 12 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. It is
further understood that the Underwriters will reimburse the Company in respect
of the foregoing expenses of the Company in the aggregate amount of $________,
payable at the First Time of Delivery.
8. The obligations of the Underwriters 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 and Ford herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and Ford shall have
performed all of their obligations in all material respects hereunder
theretofore to be performed and the following additional conditions:
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(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; 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 your
reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the validity of
the Shares being delivered at such Time of Delivery, the Registration
Statement, the Prospectus, and other related 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) Xxxxxxx Xxxxxxx & Xxxxxxxx, special counsel for the
Company, shall have furnished to you their written opinion, dated such Time
of Delivery, in form and substance reasonably satisfactory to you, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing as a corporation under
the laws of the State of Delaware and has full corporate power
and authority to conduct its business as described in the
Registration Statement and Prospectus;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus and the Shares have been duly
authorized and, upon payment and delivery in accordance with
this Agreement and with the International Underwriting
Agreement, will be validly issued, fully paid and
non-assessable;
(iii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(iv) The issue and sale of the Shares at such Time
of Delivery by the Company and the compliance by the Company
with all of the provisions of this Agreement and the
International Underwriting Agreement will not breach or result
in a default under any of the agreements identified in Annex
II hereto, nor will such action violate the Restated
Certificate of Incorporation or By-laws of the Company or any
federal or New York statute or the Delaware General
Corporation Law or any rule or regulation that has been issued
pursuant to any federal or New York statute or the Delaware
General Corporation Law;
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(v) No consent, approval, authorization, order,
registration or qualification of or with any federal or New
York court or governmental agency or body or any Delaware
court or governmental agency or body acting pursuant to the
Delaware General Corporation Law is required for the issue and
sale of the Shares by the Company or the compliance by the
Company with all of the provisions of this Agreement and the
International Underwriting Agreement, except for (i) the
registration under the Act and the Exchange Act of the Shares;
(ii) such consents, approvals or authorizations as may be
required under any concession agreements with any airport
authorities; (iii) the listing of the Shares on the Exchange;
and (iv) such consents, approvals, authorizations,
registrations or qualifications as may be required under
securities or Blue Sky laws of any jurisdiction in connection
with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(vi) The statements made in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute summaries of the terms of the Stock
(including the Shares), constitute accurate summaries of the
terms of such Stock in all material respects;
(vii) The statements made in the Prospectus under
the caption "Certain United States Tax Consequences to
Non-United States Holders", insofar as they purport to
constitute summaries of matters of United States federal tax
law and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein
in all material respects;
(viii) The Registration Statement has become
effective under the Act and, to such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission; and
(ix) The Registration Statement (or, if
applicable, the Registration Statement as amended by any
post-effective amendment prior to such Time of Delivery) as of
its effective date and the Prospectus (or, if applicable, the
Prospectus as amended or supplemented prior to such Time of
Delivery) as of its date (other than the financial statements,
related schedules and other financial data contained therein
or omitted therefrom, as to which such counsel need express no
opinion) complied as to form in all material respects with the
requirements of the Act and the applicable rules and
regulations of the Commission thereunder.
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In passing on the form of the Registration Statement (or, if
applicable, the Registration Statement as amended by any post-effective
amendment prior to such Time of Delivery) and the Prospectus (or, if
applicable, the Prospectus as amended or supplemented prior to such Time of
Delivery), such counsel may state that it has not independently verified
the accuracy, completeness or fairness of the statements made or included
therein and takes no responsibility therefor and that such opinion is based
upon such counsel's examination of the Registration Statement (or, if
applicable, the Registration Statement as amended by any post-effective
amendment prior to such Time of Delivery), the Prospectus (or, if
applicable, the Prospectus as amended or supplemented prior to such Time of
Delivery), its investigation made in connection with the preparation of the
Registration Statement (or, if applicable, the Registration Statement as
amended by any post-effective amendment prior to such Time of Delivery) and
the Prospectus (or, if applicable, the Prospectus as amended or
supplemented prior to such Time of Delivery) and its participation in
conferences with certain officers and employees of the Company, with
representatives of Coopers & Xxxxxxx L.L.P., with counsel to the Company
and any others referred to in such opinion; subject to the same
qualifications, such counsel shall also state that they have no reason to
believe that the Registration Statement (or, if applicable, the
Registration Statement as amended by any post-effective amendment prior to
such Time of Delivery) as of its effective date contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus (or, if applicable, the Prospectus as
amended or supplemented prior to such Time of Delivery) contains or, as of
its date, contained any untrue statement of a material fact or omits or, as
of its date, omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, except that in each case, such counsel need not
express a belief with respect to financial statements, related schedules or
other financial data.
In rendering such opinion, such counsel may rely as to certain
matters of fact on certificates of officers of the Company and of public
officials and may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States, the law of
the State of New York and the Delaware General Corporation Law.
(d) Xxxx X. Xxxxxxxxxx, Esq., Senior Vice President and
General Counsel of the Company, or such counsel satisfactory to you in your
reasonable judgment, shall have furnished to you his written opinion, dated
such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware,
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with power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the
Prospectus; and the Shares being delivered at such Time of
Delivery have been duly authorized and, upon payment and
delivery in accordance with this Agreement and the
International Underwriting Agreement, will be validly issued,
fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification, except to the extent that
the failure to so qualify or be in good standing would not
have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries,
considered as a whole (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company, provided that such counsel shall
state that they believe that both you and they are justified
in relying upon such opinions and certificates);
(iv) Each Principal Subsidiary 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 to own its properties and conduct its
business as described in the Prospectus; each other subsidiary
of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, with power and authority to
own its properties and conduct its business as described in
the Prospectus, except to the extent that the failure to be so
duly incorporated or validly existing would not have a
material adverse effect on the financial condition or results
of operations of the Company and its subsidiaries, considered
as a whole; and each subsidiary 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 to the extent that
the failure to so qualify or be in good standing would not
have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries,
considered as a whole; all of the issued shares of capital
stock of each such subsidiary have been duly and
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validly authorized and issued, are fully paid and
non-assessable, except to the extent that failure to be so duly
and validly authorized and issued, fully paid and
non-assessable would not have a material adverse effect on the
financial condition or results of operations of the Company and
its subsidiaries considered as a whole; and the Company owns
directly or indirectly all of the outstanding shares of capital
stock of each of the Principal Subsidiaries, free and clear of
all liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect to matters of fact
upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions and certificates);
(v) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject in which there is a reasonable possibility of
an adverse decision which, individually or in the aggregate,
could have a material adverse effect on the financial
condition, business, business prospects or results of
operations of the Company and its subsidiaries, considered as
a whole; and, to such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by the Company;
(vii) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company, the
compliance by the Company with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions herein and therein
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 (in each case material to the Company and its
subsidiaries, considered as a whole), any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the
provisions of the certificate of incorporation or by-laws of
the Company or any of the Principal Subsidiaries, nor will
such action result in any violation (in each case material to
the Company and its subsidiaries, considered as a whole)
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of the provisions of the certificate of incorporation or
by-laws of the Company's other subsidiaries, nor will such
action result in any violation (in each case material to the
Company and its subsidiaries, considered as a whole) of any
applicable statute or any applicable order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement and the
International Underwriting Agreement, except (i) the
registration under the Act and the Exchange Act of the Shares;
(ii) such consents, approvals or authorizations as may be
required under any concession agreements with any airport
authorities; (iii) the listing of the Shares on the Exchange;
and (iv) such consents, approvals, authorizations,
registrations or qualifications as may be required under
securities or Blue Sky laws of any jurisdiction in connection
with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters;
(ix) Neither the Company nor any of its
subsidiaries is (i) in violation of its certificate of
incorporation or by-laws, (ii) in default in the performance
or observance of any material 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 or (iii) in violation of any applicable statute
or any applicable order, rule or regulation (including,
without limitation, those relating to Environmental Laws) of
any court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their
properties, except, in the case of Clause (i), with respect to
the Company's subsidiaries which are not Principal
Subsidiaries, where such violation would not have a material
adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as
a whole, and except, in the case of Clauses (ii) and (iii),
where such default or violation would not have a material
adverse effect on the financial condition or results of
operations of the Company and its subsidiaries, considered as
a whole;
(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
are accurate in all material respects;
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(xi) The Registration Statement has become
effective under the Act and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for
that purpose has been instituted or threatened by the
Commission;
(xii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
(xiii) The Company and its subsidiaries each owns or
possesses all Governmental Licenses necessary to carry on its
business as presently conducted, with such exceptions as do
not have a material adverse effect on the financial condition
or results of operations of the Company and its subsidiaries,
considered as a whole, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating
to revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding would have a
material adverse effect on the financial condition or results
of operations of the Company and its subsidiaries, considered
as a whole; and
(xiv) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements, related schedules and other financial
data contained therein or omitted therefrom, as to which such
counsel need express no opinion), as of their respective
effective dates or issue dates, as the case may be, complied
as to form in all material respects with the requirements of
the Act and the applicable rules and regulations of the
Commission thereunder, although he does not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (x) of this Section 8(d).
Such counsel shall also state that he has no reason to believe
that, as of its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to such Time of Delivery (other
than the financial statements, related schedules and other financial data
contained therein or omitted therefrom, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements, related schedules and other financial data contained therein or
omitted therefrom, as to which such counsel need express no opinion)
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contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
such Time of Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements, related schedules and other financial
data contained therein or omitted therefrom, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
and such counsel does not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the Prospectus
which are not filed or described as required. With respect to this
paragraph, such counsel may state that such counsel's opinion and belief
are based upon such counsel's participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof and such
investigation as such counsel deems necessary or appropriate.
(e) Xxxx X. Xxxxxxxxx, Esq., Secretary and Assistant
General Counsel of Ford, or such counsel satisfactory to you in your
reasonable judgment, shall have furnished to you his written opinion, dated
such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Ford has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware;
(ii) All issued shares of capital stock of the
Company (other than the Shares) are owned directly or
indirectly by Ford, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect to matters of fact upon certificates of
officers of Ford, provided that such counsel shall state that
he believes that both you and he are justified in relying
upon such opinions and certificates);
(iii) This Agreement and the International
Underwriting Agreement have been duly authorized, executed and
delivered by Ford;
(iv) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company, the
compliance by the Company and Ford with all of the provisions
of this Agreement and the International Underwriting Agreement
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of
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the terms or provisions of, or constitute a default under (in
each case material to Ford and its subsidiaries, considered as
a whole), any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument known to such
counsel to which Ford is a party or by which Ford is bound or
to which any of the property or assets of Ford is subject, nor
will such action result in any violation of the provisions of
the certificate of incorporation or by-laws of Ford, nor will
such action result in any violation (in each case material to
Ford and its subsidiaries, considered as a whole) of any
applicable statute or any applicable order, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over Ford or any of its properties;
and
(v) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company and Ford of
the transactions contemplated by this Agreement and the
International Underwriting Agreement, except (i) the
registration under the Act and the Exchange Act of the Shares;
(ii) such consents, approvals or authorizations as may be
required under any concession agreements with any airport
authorities; (iii) the listing of the Shares on the Exchange;
and (iv) such consents, approvals, authorizations,
registrations or qualifications as may be required under
securities or Blue Sky laws of any jurisdiction in connection
with the purchase and distribution of the Shares by the
Underwriters and the International Underwriters.
In rendering such opinion, such counsel may state that he
expresses no opinion as to the laws of any jurisdiction outside the United
States.
(f) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 10:00 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 and also at each
Time of Delivery, Coopers & Xxxxxxx L.L.P. shall have furnished to you a
letter or letters, dated the respective date of delivery thereof, in form
and substance satisfactory to you, to the effect set forth in Annex I
hereto;
(g) Except as contemplated in the Prospectus, subsequent
to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any of
its subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary course of
business, which are material to the Company and its subsidiaries,
considered as a whole, and there has not been any material adverse change,
on a consolidated basis, in the capital stock, short-term debt or long-term
debt of the Company and its subsidiaries, or
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any material adverse change, or any development involving a prospective
material adverse change, in the condition (financial or other), business,
net worth or results of operations of the Company and its subsidiaries,
considered as a whole the effect of which, in any such case, is in the
reasonable 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;
(h) 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 Exchange; (ii) a suspension or
material limitation in trading in the Company s securities on the Exchange;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States which have resulted
in the declaration by the United States of a national emergency or war, if
the effect of any such event specified in Clauses (i) through (iv), in the
reasonable 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;
(i) The Shares to be sold by the Company at such Time of
Delivery shall have been duly listed, subject to notice of issuance, on the
Exchange; and
(j) The Company shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of the
Company satisfactory to you as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth
in subsections (a) and (g) of this Section and as to such other matters as
you may reasonably request.
9. (a) The Company and Ford, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, 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, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company
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and Ford 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 written
information furnished to the Company by any Underwriter through you expressly
for use therein and provided further that the Company shall not be liable to
any Underwriter under the indemnity agreement in this subsection (a) with
respect to any Preliminary Prospectus to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact that such
Underwriter sold Shares to a person as to whom it shall be established that
there was not sent or given, at or prior to written confirmation of such sale,
a copy of the Prospectus or of the Prospectus as then amended or supplemented
in any case where such delivery is required by the Act if the Company
previously furnished copies thereof in the quantity requested in accordance
with Section 6(c) hereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of a
material fact contained in the Preliminary Prospectus and corrected in the
Prospectus or the Prospectus as then amended or supplemented.
(b) Each Underwriter will indemnify and hold harmless the
Company and Ford against any losses, claims, damages or liabilities to which
the Company or Ford 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 written information furnished to the Company by such
Underwriter through you expressly for use therein; and will reimburse the
Company and Ford for any legal fees or other expenses reasonably incurred by
the Company or Ford in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to
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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 (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party 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, it is understood that 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 you, if the indemnified parties under this
Section consist of any Underwriter or any of their respective controlling
persons, or by the Company or Ford, if the indemnified parties under this
Section 9 consist of the Company or Ford or any of the Company's or Ford's
directors, officers or controlling persons. The indemnifying party shall not
be liable for any settlement of an action or claim for monetary damages which
an indemnified party may effect without the consent of the indemnifying party,
which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 9
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and Ford on the one hand and the
Underwriters 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 (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and Ford on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and Ford on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Shares purchased under this Agreement (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined
25
25
(i) by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or Ford on the one
hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (ii) with respect to any Underwriter, by reference to
the extent (if any) to which such losses, claims, damages or liabilities (or
actions in respect thereof) with respect to any Preliminary Prospectus result
from the fact that such Underwriter sold Shares to a person as to whom it shall
be established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as
then amended or supplemented in any case where such delivery is required by the
Act if the Company previously furnished copies thereof in the quantity
requested in accordance with Section 6(c) hereof to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the Preliminary
Prospectus and corrected in the Prospectus or the Prospectus as then amended or
supplemented. The Company, Ford and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and Ford under this
Section 9 shall be in addition to any liability which the Company and Ford may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 9 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 of
Ford and to each person, if any, who controls the Company or Ford within the
meaning of the Act.
26
26
10. (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, you may in your 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 you do not
arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In
the event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Shares, or the
Company notifies you that it has so arranged for the purchase of such Shares,
you or 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 Company agrees to file promptly
any amendments to the Registration Statement or the Prospectus which in the
opinion of Shearman & Sterling, counsel for the Underwriters, and Xxxxxxx
Xxxxxxx & Xxxxxxxx, special counsel for the Company, may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to 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 you 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 the Shares to be purchased at such Time of Delivery, then 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 you 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 the Shares to be purchased at such Time of Delivery, or if 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 Option Shares) may thereupon be terminated either by the Company or,
through you, by such Underwriters as have agreed to purchase in the aggregate
50% or more of the aggregate number of remaining Shares to be purchased at such
Time of Delivery (provided, however, that nothing
27
27
herein contained shall obligate any Underwriter to purchase additional Shares
at such Time of Delivery in excess of the amount required to be purchased by
such Underwriter pursuant to Section 10(b) hereof) without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 7 hereof
and the indemnity and contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
11. The respective indemnities, agreements,
representations, warranties and other statements of the Company, Ford and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Company or Ford, or any officer or director or
controlling person of the Company or Ford, and shall survive delivery of and
payment for the Shares.
12. If this Agreement shall be terminated pursuant to
Section 10 hereof or as a result of the failure of any condition set forth in
Section 8(h) hereof, the Company and Ford shall not then be under any liability
to any Underwriter, except as provided in Sections 7 and 9 hereof; but, if for
any other reason, any Shares are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses, including reasonable fees and disbursements of
counsel, as approved in writing by you, reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company and Ford shall then be under no further liability to
any Underwriter in respect of the Shares not so delivered except as provided in
Sections 7 and 9 hereof.
13. In all dealings hereunder, you 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 you jointly or by X.X. Xxxxxx Securities 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 or facsimile transmission to you as the Representatives, c/o X.X. Xxxxxx
Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax: (212)
648-5705), Attention: Syndicate Department; if to the Company shall be
delivered or sent by mail or facsimile transmission to the Company at 000 Xxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxx Xxxxxx (telefax: (000) 000-0000), Attention: General
Counsel; and if to Ford shall be delivered or sent by mail or facsimile
transmission to Ford at Xxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (telefax:
(000) 000-0000), Attention: Secretary; provided, however, that any notice to
an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by
mail or facsimile transmission directly to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting
28
28
such Questionnaire, which address will be supplied to the Company or Ford by
you upon request. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company, Ford and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and Ford and any person who controls the Company, Ford or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. 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.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
17. 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.
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29
If the foregoing is in accordance with your understanding,
please sign and return to us four counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Company and Ford. It is understood that your acceptance of
this letter on behalf of the Underwriters is pursuant to the authority set
forth in a form of Agreement Among U.S. Underwriters, the form of which has
been submitted to the Company and Ford for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
THE HERTZ CORPORATION
By:_____________________
Name:
Title:
FORD MOTOR COMPANY
By:_____________________
Name:
Title:
Accepted:___________, 1997
X.X. XXXXXX SECURITIES INC.
XXXXXXX, SACHS & CO.
XXXXXX BROTHERS INC.
SALOMON BROTHERS INC
XXXXX XXXXXX INC.
By: X.X. XXXXXX SECURITIES INC.
Acting on behalf of themselves and the
several Underwriters listed in
Schedule I hereto
By:_________________________
Name:
Title:
30
SCHEDULE I
NUMBER OF NUMBER OF
UNDERWRITTEN OPTION
SHARES TO BE SHARES TO BE
PURCHASED PURCHASED TOTAL
------------ ------------ -----
UNDERWRITER
-----------
X.X. Xxxxxx Securities Inc. . . . . . . . . . . . . . . . _________ _______ _________
Xxxxxxx, Sachs & Co. . . . . . . . . . . . . . . . . . . _________ _______ _________
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . _________ _______ _________
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . _________ _______ _________
Xxxxx Xxxxxx Inc. . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . ========== ========= ==========
31
SCHEDULE II
LIST OF PRINCIPAL SUBSIDIARIES
Hertz International, Ltd.
Hertz Equipment Rental Corporation
Hertz International RE Limited
32
ANNEX I
Pursuant to Section 8(f) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished separately to the
representatives of the Underwriters (the "Representatives");
(iii) If applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus as indicated in their reports
thereon copies of which have been separately furnished to the
Representatives and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the related
published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company as of December 31, 1996 and 1995 and for the
three years in the period ended December 31, 1996 included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
1996, 1995 and 1994;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited
33
Xxx. I - 2
procedures specified in such letter nothing came to their attention as
a result of the foregoing procedures that caused them to believe that
this information does not conform in all material respects with the
disclosure requirements of Items 301 and 402 of Regulation S- K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited consolidated financial statements
included in the Prospectus;
(D) if applicable, any unaudited pro forma
consolidated condensed financial statements included in the
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the
published rules and regulations thereunder or the pro forma
adjustments have not
34
Xxx. I - 3
been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest financial
statements included in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (D) there were any
decreases in consolidated net revenues or consolidated net
income or other items specified by the Representatives, or any
increases in any items specified by the Representatives, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Representatives, except in each case
for decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus,
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
35
ANNEX II
LIST OF MATERIAL AGREEMENTS
1. Indenture dated as of April 1, 1986 between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), as successor by
merger to Manufacturers Hanover Trust Company, as Trustee
2. First Supplemental Indenture dated as of April 12, 1990 between the
Company and The Chase Manhattan Bank (formerly known as Chemical
Bank), as successor by merger to Manufacturers Hanover Trust Company,
as Trustee
3. Indenture dated as of June 1, 1989 between the Company and The Bank of
New York, as Trustee
4. Indenture dated as of July 1, 1993 between the Company and Citibank,
N.A., as Trustee
5. Indenture dated as of December 2, 1994 between the Company and First
Union National Bank (formerly known as First Fidelity Bank, National
Association), as Trustee
6. Corporate Agreement, dated _______, 1997, between the Company and Ford
Motor Company
7. Car Supply Agreement, dated February 20, 1997, between the Company and
Ford Motor Company
8. Joint Advertising Agreement, dated February 20, 1997, between a
subsidiary of the Company and Ford Motor Company
