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 number of shares of [Common Stock,
no par value per share, of the Company ("Common Stock")][$
Preferred Stock, $ par value, of the Company ("Preferred
Stock")], set forth in Schedule I hereto (the "Securities"). 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 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 and the Securities
Exchange Act of 1934 (the "Exchange 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;
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
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 there 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 securities 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
warranties 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 per share set forth in Schedule I hereto [plus accrued
dividends, if any,], the number of shares of the Securities set
forth opposite such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for
the 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 Securities being herein called
the "Closing Date"). Delivery of the 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 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 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 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 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 and
will maintain such qualifications in effect so long as
required for the distribution of the Securities.
(f) Until the date set forth on Schedule I hereto,
the Company will not, without the prior written consent of
the Representatives, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or
announce the offering of, [any other shares of Common
Stock or any securities convertible into, or exchangeable
for, shares of Common Stock; provided, however, that the
Company may issue and sell Common Stock pursuant to any
employee stock option plan, stock ownership plan or
dividend reinvestment plan of the Company in effect at the
Execution Time and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise
of warrants outstanding at the Execution Time.] [(i) any
debt securities issued or guaranteed by the Company or
(ii) shares of any class of capital stock of the Company
(other than the Securities) which is preferred as to the
payment of dividends, or as to the distribution of assets
upon any liquidation or dissolution of the Company, over
shares of any other class of capital stock of the
Company.]
5. Conditions to the Obligations of the Under-
writers. The obligations of the Underwriters to purchase the
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
capital stock of the Company conforms to the
description thereof contained in the Final Pros-
pectus; [the outstanding shares of Common Stock have
been duly and validly authorized and issued and are
fully paid and nonassessable;] the Securities have
been duly and validly authorized, and, when issued
and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly authorized for
listing, subject to official notice of issuance, on
the New York Stock Exchange; the certificates for the
Securities are in valid and sufficient form; and the
holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other
rights to subscribe for the Securities;
(iv) 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 character 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 incor-
porated in the Final Prospectus describing any legal
proceedings or material contracts or agreements
relating to the Company fairly summarize such
matters;
(v) 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
and the Exchange 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;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) no consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation of the transactions
contemplated herein, 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;
(viii) neither the issue and sale of the Secu-
rities, nor the consummation of any other of the
transactions herein contemplated nor the fulfill-
ment of the terms hereof 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
(ix) 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
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 effective-
ness 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 Representatives, 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 or equity securities by any "nationally
recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act).]
( ) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
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 and under the heading
"Underwriting" or "Plan of Distribution" 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 Represen-
tatives, 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):
Amount and Purchase Price of Securities:
Number of shares:
Purchase price per share:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed
Offering]
Date referred to in Section 4(f) after which the Company may
offer or sell additional [Common Stock or securities
convertible into, or exchangeable for, shares of Common Stock]
[(i) any debt securities issued or guaranteed by the Company or
(ii) shares of any class of capital stock of the Company (other
than the Securities) which is preferred as to the payment of
dividends, or as to the distribution of assets upon any
liquidation or dissolution of the Company, over shares of any
other class of capital stock of 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 Number of Shares
to be purchased
Total............................... ---------------
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