ITT Corporation
Underwriting Agreement
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
ITT Corporation, a Nevada corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the
"Indenture") dated as of , 19 , between the Company
and , as trustee (the "Trustee"). If the firm or
firms listed in Schedule II hereto include only the firm or
firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall
each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter
as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (c) hereof.
(a) If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto),
paragraph (i) below is applicable and, if the offering
of the Securities is a Non-Delayed Offering (as so
specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933 (the
"Act") and has filed with the Securities and Exchange
Commission (the "Commission") a registration
statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such
registration statement, as so amended, has become
effective. The offering of the Securities is a
Delayed Offering and, although the Basic Prospectus
may not include all the information with respect to
the Securities and the offering thereof required by
the Act and the rules thereunder to be included in
the Final Prospectus, the Basic Prospectus includes
all such information required by the Act and the
rules thereunder to be included therein as of the
Effective Date. The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the form of prospectus included
in such registration statement relating to the
Securities and the offering thereof. As filed, such
final prospectus supplement shall include all
required information with respect to the Securities
and the offering thereof and, except to the extent
the Representatives shall agree in writing to a
modification, shall be in all substantive respects in
the form furnished to you prior to the Execution Time
or, to the extent not completed at the Execution
Time, shall contain only such specific additional
information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior
to the Execution Time, will be included or made
therein.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission a registration statement (the file number
of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and
sale of the Securities. The Company may have filed
one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will
next file with the Commission either (x) a final
prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or
(y) prior to the effectiveness of such registration
statement, an amendment to such registration
statement, including the form of final prospectus
supplement. In the case of clause (x), the Company
has included in such registration statement, as
amended at the Effective Date, all information
(other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the
Final Prospectus with respect to the Securities and
the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A
Information, together with all other such required
information, with respect to the Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects in
the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional
information and other changes (beyond that contained
in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the
Closing Date, the Final Prospectus (and any supplement
thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on
the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the
requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did not
or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement
or the Final Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term
"the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each
date after the date hereof on which a document
incorporated by reference in the Registration Statement is
filed. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including, in
the case of a Non-Delayed Offering, any Preliminary Final
Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof
and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to
Rule 424(b)
after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering,
no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Securities,
including the Basic Prospectus, included in the
Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements,
as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any
Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 415",
"Rule 424", "Rule 430A" and "Regulation S-K" refer to
such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the
Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein to
the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date of
a registration statement, with the result that, pursuant
to Rules 415 and 430A, all information (other than
Rule 430A Information) with respect to the secu-
rities so offered must be included in such registration
statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to
Rule 415 which does not commence promptly after the
effective date of a registration statement, with the
result that only information required pursuant to Rule 415
need be included in such registration statement at the
effective date thereof with respect to the securities so
offered. Whether the offering of the Securities is a
Non-Delayed Offering or a Delayed Offering shall be set
forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and war-
ranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto provides
for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to
be purchased by the Underwriters shall be as set forth in
Schedule II hereto less the respective amounts of Contract
Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities".
If so provided in Schedule I hereto, the Under-
writers are authorized to solicit offers to purchase Secu-
rities from the Company pursuant to delayed delivery con-
tracts ("Delayed Delivery Contracts"), substantially in the
form of Schedule III hereto but with such changes therein as
the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal
amount of the Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. The Company will
enter into Delayed Delivery Contracts in all cases where sales
of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum principal amount
set forth in Schedule I hereto and the aggregate principal
amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be reduced
by an amount which shall bear the same proportion to the total
principal amount of Contract Securities as the principal amount
of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in
Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion
and so advise the Company in writing; provided, however, that
the total principal amount of Securities to be purchased by
all Underwriters shall be the aggregate principal amount set
forth in Schedule II hereto less the aggregate principal amount
of Contract Securities.
3. Delivery and Payment. Delivery of and payment for
the Underwriters' Securities shall be made on the date and at
the time specified in Schedule I hereto (or such later date not
later than five business days after such specified date as the
Representatives shall designate), which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time
of delivery and payment for the Underwriters' Securities being
herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives
of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on
or by a New York Clearing House bank and payable in next day
funds. Delivery of the Underwriters' Securities shall be made
at such location as the Representatives shall reasonably
designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the
Underwriters' Securities shall be registered in such names and
in such denominations as the Representatives may request not
less than two full business days in advance of the Closing
Date.
The Company agrees to have the Underwriters'
Securities available for inspection, checking and packaging by
the Representatives in New York, New York, not later than
1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause
the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, to become
effective. Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to
the Basic Prospectus unless the Company has furnished you
a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if
not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final
Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b),
(iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the
Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any
event occurs as a result of which the Final Prospectus as
then supplemented would include any 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 shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) prepare and file
with the Commission, subject to the second sentence of
paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission
or effect such compliance and (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies
of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange for the qualification
of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will
maintain such qualifications in effect so long as required
for the distribution of the Securities, and will arrange
for the determination of the legality of the Securities
for purchase by institutional investors.
(f) Until the business date set forth on Schedule I
hereto, the Company will not, without the consent of the
Representatives, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Securities),
except for the issuance of (y) commercial paper or (z)
bank borrowings in the ordinary course of the Company's
business.
5. Conditions to the Obligations of the Under-
writers. The obligations of the Underwriters to purchase the
Underwriters' Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date,
to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 PM New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 12:00 Noon on the business
day following the day on which the public offering price
was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the
Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any
such supplement, shall have been filed in the manner and
within the time period required by Rule 424(b); and 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
threatened.
(b) The Company shall have furnished to the
Representatives the opinion of Xxxxxxxx X. Xxxxx, Esq.,
Associate General Counsel and Assistant Secretary of the
Company, dated the Closing Date, to the effect that:
(i) the Company and each of its Significant
Subsidiaries (as defined in Rule 1-02(a) of
Regulation S-X promulgated under the Act)
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly qualified to do business as a foreign corporation
and is in good standing under the laws of each
jurisdiction which requires such qualification
wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock
of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital
stock of the Subsidiaries are owned by the Company
either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry,
any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capital-
ization is as set forth in the Final Prospectus; the
Securities conform to the description thereof contained
in the Final Prospectus; and, if the Securities are to
be listed on any securities exchange, authorization
therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution,
or the Company has filed a preliminary listing
application and all required supporting documents with
respect to the Securities with such securities exchange
and such counsel has no reason to believe that the
Securities will not be authorized for listing, subject
to official notice of issuance and evidence of
satisfactory distribution;
(iv) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under
the Trust Indenture Act, and constitutes a legal, valid
and binding instrument enforceable against the Company
in accordance with its terms (subject, to applicable
bankruptcy, reorganization, insolvency, moratorium,
fraudulent transfer or other similar laws affecting
creditors' rights generally from time to time in
effect and to general principles of equity, including,
without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless
of whether considered in a proceeding in equity or at
law); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid
for by the Underwriters pursuant to this Agreement, in
the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities, will
constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with
their terms (subject to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
transfer or other similar laws affecting creditors'
rights generally from time to time in effect and to
general principles of equity, including, without
limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law);
(v) to the best knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a char-
acter required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
and the statements included or incorporated in the
Final Prospectus describing any legal proceedings or
material contracts or agreements relating to the
Company fairly summarize such matters;
(vi) the Registration Statement has become
effective under the Act; any required filing of the
Basic Prospectus, any Preliminary Final Prospectus and
the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required
by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings
for that purpose have been instituted or threatened,
and the Registration Statement and the Final Prospectus
(other than the financial statements and other
financial and statistical information contained therein
as to which such counsel need express no opinion)
comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement
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 Final Prospectus
includes any 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;
(vii) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein or in any Delayed Delivery
Contracts, except such as have been obtained under the
Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and
such other approvals (specified in such opinion) as
have been obtained;
(ix) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor
the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach
or violation of, or constitute a default under any law
or the charter or by-laws of the Company or the terms
of any indenture or other agreement or instrument known
to such counsel and to which the Company or any of its
subsidiaries is a party or bound or any judgment, order
or decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company
or any of its subsidiaries; and
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any
jurisdiction other than the State of New York or the United
States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible
officers of the Company and public officials. References to
the Final Prospectus in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Representatives shall have received from
Cravath, Swaine & Xxxxx, counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the Indenture, any
Delayed Delivery Contracts, the Registration Statement,
the Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may
reasonably 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.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by a
senior officer of the Company, dated the Closing Date, to
the effect that the signer of such certificate has carefully
examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and
this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent xxxxx-
cial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has been
no material adverse change in the condition (financial
or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising
from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representatives a letter or letters (which
may refer to letters previously delivered to one or more of
the Representatives), dated as of the Closing Date, in form
and substance satisfactory to the Representatives,
confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and
additional information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial
information contained in or incorporated by reference into
the Registration Statement and the Final Prospectus.
In addition, except as provided in Schedule I hereto,
at the Execution Time, Xxxxxx Xxxxxxxx LLP shall have furnished
to the Representatives a letter or letters,
dated as of the Execution Time, in form and substance
satisfactory to the Representatives, to the effect set forth
above.
(f) Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a
prospective change, in or affecting the business or
properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of the Representa-
tives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall
not have been any decrease in the rating of any of the
Company's debt securities by any "nationally recognized
statistical rating organization" (as defined for
purpose of Rule 436(g) under the Act).
(h) Prior to the Closing Date, the Company shall
have furnished to the Representatives such further
information, certificates and documents as the Repre-
sentatives may reasonably request.
(i) The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior
to, the Closing Date by
the Representatives. Notice of such cancelation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this
Section 5 shall be delivered at the office of Cravath, Swaine &
Xxxxx, counsel for the Underwriters, at Worldwide Plaza, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing Date.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for
all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common
law 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 a
material fact contained in the registration statement for the
registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment
thereof 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided,
however, that the Company will 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 any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person
who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements
set forth in the last paragraph of the cover page, under the
heading "Underwriting" or "Plan of Distribution" and, if Schedule
I hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading
"Delayed Delivery Arrangements" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party
from any obligations
to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of
any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which
are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company and by
the Underwriters from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to
the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters
shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of
the Company and of the Underwriters in connection with the
statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by
the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits
received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the
Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this paragraph (d), 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. For purposes of
this Section 7, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Represenatatives,
by notice given to the Company prior to delivery of and payment
for the Securities, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect
of which on financial markets is such as to make it, in the
judgment of
the Representatives, impracticable or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancelation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered, faxed or
electronically transmitted and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will
be mailed, delivered, faxed or electronically transmitted and
confirmed to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000-0000, attention of the Corporate Secretary.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New
York.
If the foregoing is in accordance with your under-
standing of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
ITT Corporation
By: ...........................
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By: [LEAD REPRESENTATIVE]
By:
.....................
[Title]
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
Date referred to in Section 4(f) after which the
Company may offer or sell debt securities issued or
guaranteed by the Company without the consent of
the Representative(s):
Modification of items to be covered by the letter from
Xxxxxx Xxxxxxxx LLP delivered pursuant to
Section 5(e) at the Execution Time:
SCHEDULE II
Underwriters Principal Amount
of Securities to
be Purchased
$
--------------------
Total............................ $====================
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from ITT
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"), $
principal amount of the Company's
(the "Securities") offered by the
Company's Prospectus dated , 19 , and related
Prospectus Supplement dated , 19 , receipt of a copy
of which is hereby acknowledged, at a purchase price of % of
the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from
, 19 , to the date of payment and delivery, and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City
time, on the Delivery Date to or upon the order of the Company in
New York Clearing House (next day) funds, at your office or at
such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities
in definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to
the Company not less than five full business days prior to the
Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of
Securities to be purchased by the undersigned on the Delivery
Date.
The obligation of the undersigned to take delivery of
and make payment for Securities on the Delivery Date, and
the obligation of the Company to sell and deliver Securitieson
the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure
thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to
be sold to them pursuant to the Underwriting Agreement referred
to in the Prospectus and Prospectus Supplement mentioned above.
Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of
the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective succes-
sors, but will not be assignable by either party hereto without
the written consent of the other.
It is understood that acceptance of this contract and
other similar contracts is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first come,
first served basis. If this contract is acceptable to the
Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned, as of the date
first above written, when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
..............................
(Name of Purchaser)
By
................................
(Signature and Title of Officer)
..................................
(Address)
Accepted:
ITT Corporation,
By
......................
(Authorized Signature)
