3,500,000 Shares
TEREX CORPORATION
Common Stock
(par value $.01)
UNDERWRITING AGREEMENT
June 17, 1999
XXXXXXX XXXXX XXXXXX INC.
Xxxxx Xxxxx Xxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000
Dear Sirs:
1. Introductory. Terex Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell 3,500,000 shares of its Common Stock, par
value $.01 per share ("Securities") (such 3,500,000 shares of Securities being
hereinafter referred to as the "Firm Securities"). The Company also proposes to
sell to the Underwriter (as defined below), at the option of the Underwriters,
an aggregate of not more than 525,000 additional shares of its Securities (such
525,000 additional shares of Securities being hereinafter referred to as the
"Optional Securities"). The Firm Securities and the Optional Securities are
herein collectively called the "Offered Securities". The Company hereby agrees
with the Underwriter named in Schedule A hereto ("Underwriter") as follows:
2. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with,
the Underwriter that:
(i) A registration statement (No. 333-52933), including a
basic prospectus, relating to certain of the Company's equity and debt
securities and warrants and rights (including the Offered Securities) and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act") has been filed with the
Securities and Exchange Commission ("Commission") and has been declared
effective under the Act and the Offered Securities all have been duly registered
under the Act pursuant to such registration statement. For purposes of this
Agreement, "Effective Time" with respect to such registration statement means
the date and time as of which such
registration statement, or the most recent post-effective amendment thereto (if
any) filed prior to the execution and delivery of this Agreement, was declared
effective by the Commission. "Effective Date" with respect to such registration
statement means the date of the Effective Time thereof. Such registration
statement, as amended as of the date hereof, including all material incorporated
by reference therein, is hereinafter referred to as the "Registration
Statement". The basic prospectus included in such Registration Statement, as
supplemented by the filing of a prospectus supplement (the "Prospectus
Supplement") as contemplated by Section 5 hereof to reflect the terms of the
offering of the Offered Securities, as first filed with the Commission pursuant
to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act (or if no
such filing is required, as included in the Registration Statement), except
that, if such basic prospectus is amended or supplemented on or prior to the
date on which the Prospectus Supplement is first filed pursuant to Rule 424(b),
the term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case,
including all material incorporated by reference in such basic prospectus and
Prospectus Supplement, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on Rule 434
under the Act.
(ii) On the Effective Date of the Registration Statement,
the Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939, as amended (the "TIA")
and the published rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and on the date of this Agreement,
the Registration Statement and the basic prospectus included therein conform,
and at the time of filing of the final Prospectus Supplement pursuant to Rule
424(b), the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act, the TIA and the Rules and
Regulations, and none of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they were
made) not misleading. The preceding sentence does not apply to statements in or
omissions from the Registration Statement or the Prospectus based upon written
information furnished to the Company by the Underwriter specifically for use
therein, it being understood and agreed that the only such information is that
described as such in Section 7(b) hereof. The Company's Annual Report on Form
10-K most recently filed with the Commission and all subsequent reports
(collectively, the "Exchange Act Reports") which have been filed by the Company
with the Commission or sent to stockholders pursuant to the Securities Exchange
Act of 1934 (the "Exchange Act") did not include, as of their respective dates,
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Such documents, when they were filed with
the Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
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(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Delaware,
with the corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified and in good
standing could not reasonably be expected, individually or in the aggregate, to
have a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole (a "Material Adverse Effect").
(iv) Each subsidiary of the Company that (i) generates 5%
or more of the revenues, (ii) generates 5% or more of the operating income, or
(iii) holds 5% or more of the assets, in each case, of the Company and its
subsidiaries on a consolidated basis (each a "Significant Subsidiary"), has been
duly incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with the corporate power and authority
to own its properties and conduct its business as described in the Prospectus;
and each Significant Subsidiary of the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing
could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and, except as expressly disclosed
or incorporated by reference in the Prospectus and except for (i) pledges in
favor of Credit Suisse First Boston, as collateral agent for the lenders under
the Company's Credit Agreement, dated as of March 6, 1998, among the Company,
certain of its subsidiaries and the lenders named therein and (ii) the purchase
money security interest in respect of 49% of the share capital of Gru Comedil
SpA, the capital stock of each Significant Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens, encumbrances and
defects.
(v) The Offered Securities, when issued pursuant to this
Agreement, will be, and all other outstanding shares of capital stock of the
Company have been, duly authorized and validly issued, will be or are, as the
case may be, fully paid and nonassessable, and conform in all material respects
to the description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or the Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
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(vii) Except for (a) that certain Registration Rights
Agreement, dated as of December 9, 1994, by and among Xxxxxxxx X. Xxxx, Xxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxxxxx and the Company, (b) that certain Warrant
Registration Rights Agreement, dated as of December 20, 1993, by and among the
Company and the parties signatory thereto, (c) that certain Registration Rights
Agreement, dated May 9, 1995, between the Company, Xxxxxxxxx & Company, Inc.,
and Xxxxxx, Read & Co. Inc., and (d) that certain Agreement, dated as of
November 2, 1995, between the Company and Xxxxxxxx X. Xxxx, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(viii) The Company has filed an application to list the
Offered Securities on the New York Stock Exchange and has received notification
that the listing has been approved subject to notice of issuance.
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by the Company for the performance by the Company of its
obligations under this Agreement, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(x) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Significant Subsidiary of the Company or
any of their properties, or any agreement or instrument to which the Company or
any Significant Subsidiary is a party or by which the Company or any Significant
Subsidiary is bound or to which any of the properties of the Company or any
Significant Subsidiary is subject, or the charter or by-laws of the Company or
any Significant Subsidiary, except in each such case, (i) that any rights to
indemnity and contribution herein may be limited by federal and state securities
laws and public policy considerations and (ii) for such breaches, violations and
defaults as could not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect.
(xi) This Agreement has been duly authorized, executed and
delivered by the Company.
(xii) Except as disclosed in the Prospectus, the Company
and its Significant Subsidiaries have good title to all real properties and all
other properties and assets owned by them that are material to the Company and
its subsidiaries taken as a whole,
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in each case free from liens and encumbrances that would materially affect the
value thereof or materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Prospectus, the Company and its Significant
Subsidiaries hold any leased real or personal property that is material to the
Company and its subsidiaries taken as a whole under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to be
made thereof by them.
(xiii) The Company and its subsidiaries (A) possess all
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them, except for
those which the failure to so possess could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, and (B)
have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if determined
adversely to the Company or any of its subsidiaries, could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(xiv) Except as disclosed in the Prospectus, no labor
strike, slowdown, stoppage or dispute (except for routine disciplinary and
grievance matters) with the employees of the Company or any subsidiary exists
or, to the knowledge of the Company, is imminent, that could reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess, have
the right to use, or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"intellectual property rights") used in the conduct of the business now operated
by them, except for such failures to so own, possess or have the right to use or
acquire such intellectual property rights as which could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect,
and have not received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries (i) is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), (ii) owns or operates any real property
that to the knowledge of the Company is contaminated with any substance that is
subject to any environmental laws, (iii) is to the knowledge of the Company
liable for any off-site disposal or contamination pursuant to any environmental
laws, or (iv) is to the knowledge of the Company subject to any claim relating
to any environmental laws, in each case of clauses (i), (ii), (iii) or (iv)
above, which violation, contamination, liability or claim would individually or
in the aggregate have a
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Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that have a reasonable
likelihood of being adversely determined and, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a Material Adverse Effect, or would materially and adversely affect the ability
of the Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened in writing or, to the
Company's knowledge, contemplated.
(xviii) The financial statements included or incorporated
by reference in the Registration Statement and the Prospectus present fairly in
all material respects the financial position, as applicable, (a) of the Company
and its consolidated subsidiaries, (b) of PPM Cranes, Inc. and its consolidated
subsidiaries, in each case as of the dates shown and their results of operations
and cash flows for the periods shown (subject in the case of interim financial
statements to normal year-end adjustments), and such financial statements have
been prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis and the schedules included in the
Registration Statement present fairly the information required to be stated
therein.
(xix) Except as disclosed in the Prospectus, since the
date of the latest financial statements included in the Prospectus, there has
been no material adverse change, nor any development or event that could
reasonably be expected to result in a material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock.
(xx) The Company is not, and after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus will not be, an "investment company" as
defined in the Investment Company Act of 1940.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, at a
purchase price of $29.625 per share, the Firm Securities.
The Company will deliver the Firm Securities to the Underwriter,
against payment of the purchase price in Federal (same day) funds by wire
transfer to an account at a United States financial institution designated in
advance in writing by the Company, at the office of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, at 9:00 A.M., New York time, on June 22,
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1999, or at such other time not later than seven full business days thereafter
as Xxxxxxx Xxxxx Barney Inc. ("Xxxxxxx Xxxxx Xxxxxx") and the Company determine,
such time being herein referred to as the "First Closing Date". The certificates
for the Firm Securities to be so delivered will be in definitive form, in such
denominations and registered in such names as Xxxxxxx Xxxxx Barney requests and
will be made available for checking and packaging at the above office at least
24 hours prior to the First Closing Date.
In addition, upon written notice from Xxxxxxx Xxxxx Xxxxxx given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus Supplement, the Underwriter may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriter the number of Optional
Securities specified in such notice and the Underwriter agrees to purchase such
Optional Securities. Such Optional Securities shall be purchased for the account
of the Underwriter and may be purchased by the Underwriter only for the purpose
of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time in accordance with this Section 3 and to the extent
not previously exercised may be surrendered and terminated at any time upon
notice by Xxxxxxx Xxxxx Barney to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by Xxxxxxx
Xxxxx Xxxxxx but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. The Company will
deliver the Optional Securities being purchased on each Optional Closing Date to
the Underwriter, against payment of the purchase price therefor in Federal (same
day) funds by wire transfer to an account at a United States financial
institution designated in advance in writing by the Company, at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as Xxxxxxx Xxxxx Barney
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office at least 24 hours
in advance of such Optional Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
Underwriter that:
(a) Immediately following the execution of this Agreement, the
Company will prepare a final Prospectus Supplement that complies with the Act
and the Rules and
7
Regulations and that reflects the terms of the offering of the Offered
Securities and such other information as the Underwriter and the Company deem
appropriate. The Company will file the Prospectus Supplement with the Commission
pursuant to and in accordance with subparagraph (2) (or if applicable and if
consented to by Xxxxxxx Xxxxx Xxxxxx, subparagraph (5)) of Rule 424(b) not later
than the second business day following the execution and delivery of this
Agreement. The Company will advise Xxxxxxx Xxxxx Barney promptly of any such
filing pursuant to Rule 424(b).
(b) The Company will advise Xxxxxxx Xxxxx Xxxxxx promptly of
any proposal to amend or supplement the Registration Statement or the Prospectus
prior to the termination of the offering of the Offered Securities and will not
effect such amendment or supplementation without Xxxxxxx Xxxxx Barney's consent,
which consent shall not be unreasonably withheld or delayed; and, prior to the
termination of the offering of the Offered Securities, the Company will also
advise Xxxxxxx Xxxxx Xxxxxx promptly of the effectiveness of any amendment or
supplementation of the Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of the
Registration Statement and will use its reasonable best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with sales by
the Underwriter or any dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will promptly notify Xxxxxxx Xxxxx Barney of
such event and will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither Xxxxxxx
Xxxxx Xxxxxx'x consent to, nor the Underwriter's delivery of, any such amendment
or supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(d) As soon as practicable, but not later than 16 months,
after the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the first effective date of the
Registration Statement relating to the Offered Securities, (ii) the effective
date of the most recent post-effective amendment to the Registration Statement
to become effective prior to the date of this Agreement and (iii) the date of
the Company's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of this Agreement, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Company will furnish to the Underwriter one copy of
the Registration Statement (which will contain conformed signatures and will
include all exhibits), each related preliminary prospectus supplement, and, so
long as a prospectus relating to the
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Offered Securities is required to be delivered under the Act in connection with
sales by the Underwriter or any dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as Xxxxxxx Xxxxx
Barney reasonably requests. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the execution and
delivery of this Agreement. All other such documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriter all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as Xxxxxxx
Xxxxx Xxxxxx reasonably designates and will continue such qualifications in
effect so long as required for the distribution.
(g) During the period of two years hereafter, the Company will
furnish to the Underwriter, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the Company
will furnish to the Underwriter as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission under
the Exchange Act, or mailed to stockholders.
(h) For a period of 90 days after the date of the initial
public offering of the Offered Securities, the Company will not offer, sell,
contract to sell, announce their intention to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration statement
under the Act relating to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of Xxxxxxx
Xxxxx Barney, and the Company shall, concurrently with the execution of this
Agreement, deliver an agreement executed by each of the officers and directors
of the Company listed on Schedule B hereto to the effect that each such person
will not engage in any of the foregoing transactions (other than bona fide
pledges) with respect to any Securities or securities convertible into or
exchangeable or exercisable for any Securities, in each case beneficially owned
by such person during such period. The foregoing shall not apply to (i) any
Securities issuable upon the exercise or redemption of an option or warrant or
the conversion or exchange of a security, in each case outstanding on the date
of the Prospectus Supplement and in accordance with its terms of the respective
securities, (ii) any securities of the Company sold or granted pursuant to the
Company's incentive and other benefit plans as in effect as of the date of the
Prospectus Supplement, (iii) any shares of its Securities issued upon exercise
of the Company's issued and outstanding Equity Rights in accordance with the
terms thereof, (iv) any warrants or securities convertible into its Securities
issued in exchange for any of the Company's warrants, options or Equity Rights
outstanding on the date of the Prospectus Supplement, and (v) securities issued
as consideration for any acquisition (pursuant to a merger or otherwise) of one
or more entities.
(i) The Company agrees with the Underwriter that the Company
will pay all expenses incident to the performance of the obligations of the
Company under this Agreement, for any filing fees and other expenses (including
reasonable fees and disburse-
9
ments of counsel) in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as Xxxxxxx Xxxxx Xxxxxx reasonably
designates and the printing of memoranda relating thereto, for the filing fee
incident to the review by the National Association of Securities Dealers, Inc.
of the Offered Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities and for
expenses incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriter.
(j) The Company agrees that it will use the net proceeds to it
from the Offered Securities in the manner described in the Prospectus Supplement
under the caption "Use of Proceeds".
6 Conditions of the Obligations of the Underwriter. The obligations of
the Underwriter to purchase and pay for the Firm Securities on the First Closing
Date and the Optional Securities to be purchased on each Optional Closing Date
will be subject to the accuracy in all material respects of the representations
and warranties on the part of the Company herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Underwriter shall have received a letter, dated the
date of delivery thereof (which shall be on or prior to the date of this
Agreement), of PricewaterhouseCoopers LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included or incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards No. 71,
Interim Financial Information, on the unaudited financial statements included in
or incorporated by reference in the Registration Statement;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim financial statements of
the Company, and of all subsidiaries of the Company for which such interim
financial statements are provided, inquiries of officials of the Company, and of
such subsidiaries, who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that caused them
to believe that:
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(A) the unaudited financial statements included in
or incorporated by reference in the Registration Statement do not comply as to
form in all material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements for them to
be in conformity with generally accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was any change in
the capital stock or any increase in total debt or any decrease in consolidated
net current assets (working capital) or decrease in shareholders' equity of the
Company and its consolidated subsidiaries, as compared with amounts shown on the
latest balance sheet included or incorporated by reference in the Prospectus; or
(C) for the period from the closing date of the
latest income statement included or incorporated by reference in the Prospectus
to the closing date of the latest available income statement read by such
accountants there were any decreases, as compared with the corresponding period
of the previous year and with the period of corresponding length ended the date
of the latest income statement included or incorporated by reference in the
Prospectus, in consolidated net sales or in the total or per share amounts of
consolidated net income;
(D) based on inquiries of Company officials, at a
subsequent specified date, not more than three business days prior to the date
of this Agreement, there was any change in common stock or increase in total
debt of the Company and its consolidated subsidiaries, as compared with amounts
shown on the latest balance sheet included or incorporated by reference in the
Prospectus; or
(E) for the period from the closing of the latest
income statement included or incorporated by reference in the Prospectus to a
subsequent specified date, not more than three business days prior to the date
of this Agreement, based on inquiries of Company officials, there were any
decreases, as compared with the corresponding period of the previous year, in
consolidated net sales or in the total or per share amounts of consolidated net
income;
except in all cases set forth in clauses (B) (C), (D) or (E) above for changes,
increases or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter;
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial information
contained in the Registration Statement (in each case to the extent that such
dollar amounts, percentages and other financial information are derived from the
general accounting records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
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derived directly from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statements.
(b) The Prospectus Supplement shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Company or the Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or
event that could reasonably be expected to result in a change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, which, in the judgment of the
Underwriter, is material and adverse to the Company and its subsidiaries taken
as a whole and makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating in effect on the date
of this Agreement of any debt securities or preferred stock of the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating); (iii) any
suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking moratorium declared
by U.S. Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Underwriter, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, dated such
Closing Date, of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, counsel to the
Company, to the effect that:
(i) The Company and each Significant Subsidiary organized
under the laws of the State of Delaware are corporations duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and have all requisite corporate power and
12
authority to own their respective properties and carry on their respective
businesses as described in the Prospectus;
(ii) The Offered Securities to be issued pursuant to this
Agreement have been duly authorized for issuance to the Underwriter and upon the
issuance and delivery of the Offered Securities and the receipt by the Company
of all consideration therefor in accordance with the terms of this Agreement,
the Offered Securities will be validly issued, fully paid and non-assessable,
and free of preemptive rights pursuant to law or in the Company's certificate of
incorporation or by-laws, and the Offered Securities will conform in all
material respects to the description thereof contained in the Prospectus.
(iii) Except for those agreements referred to in the
representation in Section 2(a)(vii) above, there are no contracts, agreements or
understandings known to such counsel between the Company and any person granting
such person the right to require the Company to include any securities in the
securities registered pursuant to the Registration Statement;
(iv) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company"
within the meaning of the Investment Company Act of 1940, as amended;
(v) The Company and each Significant Subsidiary
incorporated under the laws of the State of New York or the State of Delaware
("Domestic Significant Subsidiaries") are not required to obtain any consent,
approval, authorization of, order of, or declaration, filing or registration
with, any governmental authority under any Applicable Law (as defined) in
connection with or as a condition to consummation by the Company of the
transactions contemplated by this Agreement in connection with the sale of the
Offered Securities, except such consents, approvals, authorizations, orders,
declarations, filings or registrations as have been obtained and made under the
Act and such as may be required under state securities laws (with respect to
which such counsel need express no opinion).
(vi) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement has been validly executed
and delivered by the Company. The execution, delivery and performance by the
Company of this Agreement, and compliance by it therewith, do not and will not
(a) conflict with, constitute a default under or violate (i) any provision of
the certificate of incorporation or by-laws of the Company or any Domestic
Significant Subsidiary, (ii) any Applicable Law (except state securities and
blue sky laws, as to which such counsel need express no opinion and except that
any rights to indemnity and contribution herein may be limited by federal and
state securities laws and public policy considerations); (iii) to such counsel's
knowledge, any judgment, order, writ, injunction or decree to which the Company,
its Domestic Significant Subsidiaries or any of their respective properties are
subject, or (iv) any agreement or instrument filed as an exhibit to the
13
Registration Statement or any Exchange Act filing incorporated by reference in
the Registration Statement.
(vii) The Registration Statement was declared effective
under the Act at 10:00 a.m. on July 9, 1998, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion
on the date specified therein, and, to the best of the knowledge of such counsel
based solely upon not having heard anything to the contrary in conversations
with the staff of the Securities Exchange Commission, no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act or
proceedings therefor instituted, threatened, pending, or contemplated by the
Commission, and the Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective effective or issue dates
and as of such Closing Date (except as to financial statements and related
notes, and financial and statistical data and supporting schedules included or
incorporated by reference therein, as to which such counsel need express no
opinion) complied as to form in all material respects with the requirements of
the Act and the Rules and Regulations; and that while such counsel is not
passing upon and does not assume responsibility for, and shall not be deemed to
have independently verified the accuracy, completeness or fairness of the
statements contained in the Registration Statement or any Prospectus (except
statements made under the captions "Description of Debt Securities,"
"Description of Preferred Stock," "Description of Common Stock," "Description of
Warrants" and "Description of Rights" in the basic prospectus and "Description
of Common Stock" in the Prospectus Supplement, insofar as they relate to legal
matters), such counsel shall state that based upon such participation but
without independent review or verification, nothing has come to such counsel's
attention which causes such counsel to believe that, at the time the
Registration Statement or any amendment thereto became effective or as of such
Closing Date, the Registration Statement (except as to financial statements and
related notes, and financial and statistical data and supporting schedules
included or incorporated by reference therein, as to which such counsel need
express no opinion), contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading; or at such Closing Date the Registration Statement or
Prospectus (except as aforesaid) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material respects and fairly
present the information required to be shown; and such counsel do not know of
any legal or governmental proceedings that are required to be described in the
Registration Statement or the Prospectus which are not described as required or
of any contracts or documents of a character that are required to be described
in the Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement which are not described and filed as required.
14
Such counsel may state that, as it relates to enforceability, the
opinions expressed in clause (viii) are limited by (1) bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors' rights generally and
(2) equitable principles of general applicability. Such counsel may also qualify
such opinion in other respects reasonably acceptable to Xxxxxxx Xxxxx Barney.
(e) The Underwriter shall have received an opinion, dated such
Closing Date, of Xxxx X Xxxxx, general counsel of the Company, to the effect
that:
(i) The Company and each Significant Subsidiary
incorporated within the United States of America (the "Domestic Significant
Subsidiaries") have been duly incorporated and are existing corporations in good
standing under the laws of their respective jurisdictions of incorporation, with
corporate power and authority to own their respective properties and conduct
their respective businesses as described in the Prospectus; and the Company and
each Domestic Significant Subsidiary are duly qualified to do business as
foreign corporations in good standing in all other jurisdictions in which their
ownership or lease of property or the conduct of their business requires such
qualifications, except to the extent that the failure to be so qualified and in
good standing could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. Based on my review of
organizational documents (or English translations thereof) of each Significant
Subsidiary incorporated outside the United States of America (the "Foreign
Significant Subsidiaries") and interviews and statements of persons who are
informed as to the formation and status of the Foreign Significant Subsidiaries,
the Foreign Significant Subsidiaries have been duly incorporated and are
existing corporations in good standing under the laws of their respective
countries of organization, with corporate power and authority to own their
respective properties and conduct their respective businesses as described in
the Prospectus; based on my review of organizational documents (or English
translations thereof) of the Foreign Significant Subsidiaries and interviews and
statements of persons who are informed as to the formation and status of the
Foreign Significant Subsidiaries, the Foreign Significant Subsidiaries are duly
qualified to do business as foreign corporations in good standing in all other
jurisdictions in which their ownership or lease of property or the conduct of
their business requires such qualifications, except to the extent that the
failure to be so qualified and in good standing could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(ii) Based upon my examination of the corporate stock
books and records of each of the Domestic Significant Subsidiaries and the
corporate stock books and records (or English translations thereof) of the
Foreign Significant Subsidiaries and interviews and statements of persons who
are informed as to the status of the Foreign Significant Subsidiaries, the
Offered Securities, when issued in accordance with the Underwriting Agreement,
will be, and all other outstanding shares of the capital stock of the Company
and each Significant Subsidiary have been, duly authorized and validly issued,
are fully paid and nonassessable and conform in all material respects to the
description thereof
15
contained in the Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Offered Securities;
(iii) Except for those agreements referred to in the
representation set forth in Section 2(a)(vii) hereof, there are no contracts,
agreements or understandings known to such counsel between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required to be
obtained or made by the Company or any Significant Subsidiary under any
Applicable Law for the consummation of the transactions contemplated by this
Agreement in connection with the sale of the Offered Securities, except such as
have been obtained and made under the Act and such as may be required under
state securities laws (with respect to which such counsel need express no
opinion);
(v) The execution and delivery of, and performance by the
Company of its obligations under, this Agreement will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any Applicable Law or order known to such counsel of any governmental agency or
body or any court having jurisdiction over the Company or any Significant
Subsidiary or any of their respective properties (except that any rights to
indemnity and contribution herein may be limited by federal and state securities
laws and public policy considerations), or any agreement or instrument to which
the Company or any Significant Subsidiary is a party or by which the Company or
any Significant Subsidiary is bound or to which any of properties of the Company
or any Significant Subsidiary is subject, or the charter or by-laws of the
Company or any Significant Subsidiary.
(vi) The Registration Statement was declared effective
under the Act at 10:00 a.m. on July 9, 1998, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion
on the date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act, and
the Registration Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates and as of such Closing
Date, complied as to form in all material respects with the requirements of the
Act and the Rules and Regulations; and that while such counsel is not passing
upon and does not assume responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the statements
contained in the Registration Statement or any Prospectus (except statements
made under the captions "Description of Debt Securities," "Description of
Preferred Stock,"
16
"Description of Common Stock," "Description of Warrants" and "Description of
Rights" in the basic prospectus and "Description of Common Stock" in the
Prospectus Supplement, insofar as they relate to legal matters), such counsel
shall state that no facts have come to such counsel's attention in the course of
participating with officers and representatives of the Company in the
preparation of the Registration Statement (except for financial statements and
schedules and other financial and statistical data contained therein, as to
which such counsel need express no opinion) to lead it to believe that any part
of the Registration Statement or any amendment thereto, as of its effective date
or as of such Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading; or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; the descriptions
in the Registration Statement and Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly present
the information required to be shown; and such counsel do not know of any legal
or governmental proceedings required to be described in the Registration
Statement or the Prospectus which are not described as required or of any
contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as required; and
(vii) This Agreement has been duly authorized, executed
and delivered by the Company.
Such counsel may state that, as it relates to enforceability,
the opinions expressed in clause (vii) are limited by (1) bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors' rights
generally and (2) equitable principles of general applicability. Such counsel
may also qualify such opinion in other respects reasonably acceptable to Xxxxxxx
Xxxxx Barney.
(f) The Underwriter shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriter, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such Closing Date,
the Registration Statement, the Prospectus and other related matters as the
Underwriter may require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon
such matters.
(g) The Underwriter shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to their
knowledge after reasonable investigation, shall state that: the representations
and warranties of the Company in this Agreement are true and correct in all
material respects; the Company has complied in all material respects with all
17
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission;
and, subsequent to the date of the most recent financial statements incorporated
by reference in the Prospectus, there has been no material adverse change, nor
any development or event that could reasonably be expected to result in a
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(h) The Underwriter shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to in
such subsection will be a date not more than three business days prior to such
Closing Date for the purposes of this subsection.
(i) The Offered Securities shall have been approved for
listing on the New York Stock Exchange, subject only to notice of issuance.
(j) The Company will furnish the Underwriter with such
conformed copies of such opinions, certificates, letters and documents as the
Underwriter reasonably requests. The Underwriter may in its sole discretion
waive compliance with any conditions to the obligations of the Underwriter
hereunder, whether in respect of an Optional Closing Date or otherwise.
7 Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the
Underwriter against any losses, claims, damages or liabilities, to which the
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability (or actions in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in conformity with written information furnished to
the Company by the Underwriter specifically for use therein, it being understood
and agreed that the only such information furnished by the Underwriter consists
of the information described as such in subsection (b) below.
18
(b) The Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in conformity with written information furnished to the Company by the
Underwriter specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by the Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of the Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting", and the last paragraph under the caption "Underwriting"
concerning over-allotments and stabilizing.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event shall the
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action. An indemnifying party shall not be liable for any settlement of
any proceeding effected without its prior written consent;
19
provided, however, that if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees it shall be liable for any settlement
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Underwriter from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Underwriter in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Underwriter shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Underwriter (as hereinafter defined) within the meaning of the Act; and the
obligations of the Underwriter under this Section shall
20
be in addition to any liability which the Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
8 Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Underwriter is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company and the Underwriter
pursuant to Section 7 shall remain in effect; if any Offered Securities have
been purchased hereunder, the Company shall remain responsible for the expenses
to be paid or reimbursed by them pursuant to Section 5 and the respective
obligations of the Company and the Underwriter pursuant to Section 7 shall
remain in effect, and the representations and warranties in Section 2 and all
other obligations under Section 5 shall also remain in effect. If the purchase
of the Offered Securities by the Underwriter is not consummated for any reason
other than solely because of the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 6(c), the Company will reimburse the Underwriter
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
9 Notices. All communications hereunder will be in writing and, if sent
to the Underwriter, will be mailed, delivered or telegraphed and confirmed to
the Underwriter, c/o Xxxxxxx Xxxxx Xxxxxx Inc., Seven World Trade Center, New
York, N.Y. 10048, Attention: Xxxxxx Xxxxxx, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Terex Corporation, 000
Xxxx Xxxx Xxxx, Xxxxxxxx, XX 00000, Attention: Xxxx X Xxxxx.
10 Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12 Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws. The Company hereby submits to the non-exclusive
jurisdiction of the
21
Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
22
If the foregoing is in accordance with the Underwriter's understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Company and the
Underwriter in accordance with its terms.
Very truly yours,
TEREX CORPORATION
By
--------------------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
XXXXXXX XXXXX BARNEY INC.
By XXXXXXX XXXXX XXXXXX INC.
By
---------------------------
Name:
Title:
SCHEDULE A
Number of
Firm Securities
Underwriter to be Purchased
----------- ----------------
Xxxxxxx Xxxxx Barney Inc. 3,500,000
----------
Total 3,500,000
SCHEDULE B
Xxxxxx X. XxXxx
Xxxxxx X. Xxxxxxxxx
G. Xxxxx Xxxxxxxx
Xxxxxxx X. Xxxx
Xxx XxXxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Fil Xxxxxxx
Xxxx I Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxx
