Exhibit 1
ITT CORPORATION
DEBT SECURITIES
Underwriting Agreement
November 12, 1996
To the Representative or
Representatives named in
Schedule A hereto of the
Underwriters named in
Schedule B hereto
Gentlemen:
The undersigned ITT Corporation, a Nevada corporation (the
"Company"), confirms its agreement with the several underwriters named
in Schedule B hereto (the "Underwriters"), as set forth below. If the
firm or firms named in Schedule B hereto include only the firm or
firms named in Schedule A hereto (the "Representatives"), then the
terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
The Company proposes to issue and sell debt securities of
the title and amount set forth in Schedule A hereto (the
"Securities"), to be issued under the indenture identified in Schedule
A hereto (the "Indenture") between the Company and the trustee named
therein (the "Trustee"). If so indicated in Schedule A hereto, the
Company also proposes to issue warrants (the "Warrants") to purchase
the aggregate principal amount indicated in Schedule A hereto of the
debt securities identified in Schedule A hereto (the "Warrant
Securities") to be issued pursuant to the provisions of the Indenture.
The Warrants, if any, are to be issued pursuant to the provisions of
the Warrant Agreement identified in Schedule A hereto (the "Warrant
Agreement") between the Company and the Warrant Agent named in
Schedule A hereto (the "Warrant Agent").
1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Underwriter
that:
(a) A registration statement on Form S-3 (with the file
number set forth in Schedule A hereto), including a prospectus,
relating to the Securities has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, has been filed with
the Commission and has become effective. Such registration statement
and prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement; any such amendment or supplement
was so prepared and filed and any such amendment has become effective.
A prospectus supplement ("Prospectus Supplement") relating to the
Securities, the Warrants, if any, and the Warrant Securities, if any,
has been so prepared and will be filed pursuant to Rule 424 under the
Act. Copies of such registration statement and prospectus, any such
amendment or supplement, the Prospectus Supplement and all documents
incorporated by reference therein which were filed with the Commission
on or prior to the date of this Agreement (including one conformed
copy of the registration statement and of each amendment thereto for
each of you and for counsel for the Underwriters) have been delivered
to you. Such registration statement and prospectus, as amended or
supplemented to the date of this Agreement and as supplemented by the
Prospectus Supplement are herein referred to as the "Registration
Statement" and the "Prospectus". Any reference herein to the
Registration Statement or Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein which were
filed with the Commission on or prior to the date of this Agreement,
and any reference to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement or Prospectus shall be
deemed to refer to and include the filing of any document with the
Commission deemed to be incorporated by reference therein after the
date of this Agreement.
(b) The registration statement, at the time it became
effective, any post-effective amendment thereto, at the time it became
effective, the Registration Statement and the Prospectus, at the date
of this Agreement and at the Closing Date (as hereinafter defined),
and any amendment or supplement thereto, conformed or will conform in
all material respects to the requirements of the Act, the Trust
Indenture Act, and the Rules and Regulations; and no such document
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
except that the foregoing shall not apply to statements in or
omissions from any such document in reliance upon, and in conformity
with, written information furnished to the Company by you, or by any
Underwriter through you, specifically for use in the preparation
thereof.
(c) The documents incorporated by reference in the
Registration Statement or Prospectus, when they became effective or
were filed with the
Commission, as the case may be, under the Securities Exchange Act of
1934 (the "Exchange Act"), conformed, and any documents so filed and
incorporated by reference after the date of this Agreement will, when
they are filed with the Commission, conform, in all material respects
to the requirements of the Act and the Exchange Act, as applicable,
and the Rules and Regulations of the Commission thereunder.
(d) The Indenture, the Warrant Agreement, if any, the
Securities, the Warrants, if any, and the Warrant Securities, if any,
have been duly authorized; the Indenture has been duly executed and
delivered and duly qualified under the Trust Indenture Act; and the
Indenture, the Warrant Agreement, if any, when duly executed and
delivered, and the Securities, the Warrants, if any, and the Warrant
Securities, if any, when duly executed, authenticated, issued and
delivered as contemplated hereby, by the Indenture, by the Delayed
Delivery Contracts (as hereinafter defined), if any, and by the
Warrant Agreement, if any, constitute, in the case of the Indenture,
and will constitute, in all other cases, valid and legally binding
obligations of the Company in accordance with their respective terms
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(e) Except as described in or contemplated by the
Registration Statement and the Prospectus, there has not been any
material adverse change in, or any adverse development which
materially affects, the respective business, properties, financial
condition or results of operations of the Company and its subsidiaries
taken as a whole from the dates as of which information is given in
the Registration Statement and the Prospectus.
(f) Xxxxxx Xxxxxxxx LLP, whose reports appear in the
Company's Annual Report on Form 10-K for the year ended December 31,
1995, which is incorporated in the Prospectus by reference, are, and
at the time of the issuance of said report were, independent public
accountants as required by the Act and the Rules and Regulations.
(g) Each of the Company and its subsidiaries has been duly
organized, is validly existing and in good standing under the laws of
the jurisdiction of its incorporation, is duly qualified to do
business and is in good standing as a foreign corporation in each
jurisdiction in which its ownership of property or the conduct of its
business requires such qualification, and has all power and authority
necessary to own or hold its properties and to conduct the business in
which it is engaged (subject, in the case of subsidiaries of the
Company, and in the case of the Company with reference to such
qualification and standing and such power and authority, to
exceptions which in the aggregate do not materially adversely affect
the business or operations of the Company and its subsidiaries taken
as a whole.
(h) Except as described in the Prospectus, there is no
action, suit or proceeding pending, nor to the knowledge of the
General Counsel of the Company, is there any action, suit or
proceeding threatened, which might reasonably be expected to result in
a material adverse change in the financial condition, results of
operations or business of the Company and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration
Statement.
2. Purchase, Sale and Delivery of Securities. On the basis
of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company
agrees to issue and 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 A hereto, the amount of
Securities, and the amount of Warrants, if any, set forth opposite the
name of such Underwriter in Schedule B hereto reduced by such
Underwriter's portion of any Contract Securities (as hereinafter
defined), determined as provided below.
If so authorized in Schedule A hereto, the Underwriters may
solicit offers from institutional investors of the types set forth in
the Prospectus to purchase Securities and Warrants, if any, from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"). Such contracts shall be substantially in the form of
Exhibit I hereto but with such changes therein as the Company may
approve. Securities and Warrants, if any, to be purchased pursuant to
Delayed Delivery Contracts are herein called "Contract Securities".
When Delayed Delivery Contracts are authorized in Schedule A, the
Company will enter into a Delayed Delivery Contract in each case where
a sale of Contract Securities arranged through you has been approved
by the Company but, except as the Company may otherwise agree, such
Delayed Delivery Contracts must be for at least the minimum amount of
Contract Securities set forth in Schedule A hereto, and the aggregate
amount of Contract Securities may not exceed the amount set forth in
such Schedule. The Company will advise you not later than 10:00 a.m.,
New York City time, on the second full business day preceding the
Closing Date (or at such later time as you may otherwise agree) of
sales of the Contract Securities which have been so approved. You and
the other Underwriters will not have any responsibility in respect of
the validity or performance of Delayed Delivery Contracts.
The amount of Securities and Warrants, if any, to be
purchased by each Underwriter as set forth in Schedule B hereto shall
be reduced by an amount which shall bear the same proportion to the
total amount of Contract Securities as the
amount of Securities and Warrants, if any, set forth opposite the name
of such Underwriter bears to the total amount of Securities and
Warrants, if any, set forth in Schedule B hereto, except to the extent
that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company; provided, however, that the
total amount of Securities and Warrants, if any, to be purchased by
all Underwriters shall be the total amount of Securities and Warrants,
if any, set forth in Schedule B hereto less the aggregate amount of
Contract Securities.
The Securities and Warrants, if any, to be purchased by the
Underwriters will be delivered by the Company to you for the accounts
of the several Underwriters at the office specified in Schedule A
hereto against payment of the purchase price therefor, unless
otherwise specified in Schedule A hereto, by certified or official
bank check or checks drawn on or by a bank in New York City payable in
same-day funds to the order of the Company at the office, on the date
and at the times specified in such Schedule A, or at such other time
not later than eight full business days thereafter, as you and the
Company determine, such time being herein referred to as the "Closing
Date". Such Securities and Warrants, if any, will be prepared in
definitive form and in such authorized denominations and registered in
such names as you may require upon at least two business days' prior
notice to the Company and will be made available for checking and
packaging at the office at which they are to be delivered on the
Closing Date (or such other office as may be specified for that
purpose in Schedule A) at least one business day prior to the Closing
Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make
payment to the Company on behalf of any other Underwriter for
Securities and Warrants, if any, to be purchased by such Underwriter.
Any such payment by you shall not relieve any such Underwriter of any
of its obligations hereunder.
The Company will pay to you on the Closing Date for the
accounts of the Underwriters any fee, commissions or other
compensation which is specified in Schedule A hereto. Such payment
will be made by certified or official bank check drawn on or by a bank
in New York City payable in same-day funds.
The Company shall not be obligated to deliver any Securities
and Warrants, if any, except upon payment for all Securities and
Warrants, if any, to be purchased pursuant to this Agreement as herein
provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to
purchase the Securities and Warrants, if any, which the defaulting
Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Securities and Warrants, if
any, set forth in Schedule A hereto to be purchased by each remaining
non-defaulting Underwriter set forth therein bears to the aggregate
principal amount of Securities and Warrants, if any, set forth therein
to be purchased by all the remaining non-defaulting Underwriters;
provided that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Securities and Warrants, if any, if the
aggregate principal amount of Securities and Warrants, if any, which
the defaulting Underwriter or Underwriters agreed but failed to
purchase exceeds 9.09% of the total principal amount of Securities and
Warrants, if any, and any remaining non-defaulting Underwriter shall
not be obligated to purchase more than 110% of the principal amount of
Securities and Warrants, if any, set forth in Schedule B hereto to be
purchased by it. If either of the foregoing maximums are exceeded, the
remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right,
but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Securities and Warrants, if any. If,
pursuant to the previous sentence, the remaining Underwriters or other
underwriters satisfactory to the Representative do not elect to
purchase the Securities and Warrants, if any, which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses as set forth in
Section 3(j) hereof.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages
caused by its default. If other underwriters are obligated or agree to
purchase the Securities and Warrants, if any, of a defaulting
Underwriter, either the Representative or the Company may postpone the
Closing Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement, any
Prospectus or in any other document or arrangement.
3. Covenants. The Company covenants and agrees with each
Underwriter that:
(a) The Company will cause the Prospectus Supplement to be
filed pursuant to Rule 424 under the Act and will notify you
promptly of such filing. During the period in which a prospectus
relating to the Securities, Warrants, if any, and Warrant
Securities, if any, is required to be delivered under the Act,
the Company will notify you promptly of the time when any
amendment to the Registration Statement has become effective or
any subsequent supplement to the Prospectus has been filed and of
any request by the Commission for any amendment of or supplement
to the Registration Statement or Prospectus or for additional
information; it will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus which, in your opinion, may
be necessary or advisable in connection with the distribution of
the Securities and Warrants, if any, by the Underwriters; it will
file no amendment or supplement to the Registration Statement or
Prospectus (other than any prospectus supplement relating to the
offering of securities other than the Securities, the Warrants,
if any, and the Warrant Securities, if any, registered under the
Registration Statement or any document required to be filed under
the Exchange Act which upon filing is deemed to be incorporated
by reference therein) to which you shall reasonably object by
notice to the Company after having been furnished a copy a
reasonable time prior to the filing; and it will furnish to you
at or prior to the filing thereof a copy of any such prospectus
supplement or any document which upon filing is deemed to be
incorporated by reference in the Registration Statement or
Prospectus.
(b) The Company will advise you, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance by
the Commission of any stop order suspending the effectiveness of
the Registration Statement, of the suspension of the
qualification of the Securities, Warrants, if any, and Warrant
Securities, if any, for offering or sale in any jurisdiction, or
of the initiation or threatening of any proceeding for any such
purpose; and it will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(c) Within the time during which a prospectus relating to
the Securities, Warrants, if any, and Warrant Securities, if any,
is required to be delivered under the Act, the Company will
comply as far as it is able with all requirements imposed upon it
by the Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the
Securities, Warrants, if any, and Warrant Securities, if any, as
contemplated by the provisions hereof and the Prospectus. If
during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of
the circumstances then existing, not misleading, or if during
such period it is necessary to amend or supplement the
Registration Statement or Prospectus to comply with the Act,
the Company will promptly notify you and will amend or supplement
the Registration Statement or Prospectus (at the expense of the
Company) so as to correct such statement or omission or effect
such compliance.
(d) The Company will use its best efforts to qualify the
Securities, Warrants, if any, and Warrant Securities, if any, for
sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in
effect so long as required for the distribution of the
Securities, Warrants, if any, and Warrant Securities, if any,
except that the Company shall not be required in connection
therewith to qualify as a foreign corporation or to execute a
general consent to service of process in any state. The Company
will also arrange for the determination of the eligibility for
investment for the Securities, Warrants, if any, and Warrant
Securities, if any, under the laws of such jurisdictions as you
reasonably request.
(e) The Company will furnish to the Underwriters copies of
the Registration Statement and Prospectus (including all
documents incorporated by reference therein), and all amendments
and supplements to the Registration Statement or Prospectus which
are filed with the Commission during the period in which a
prospectus relating to the Securities, Warrants, if any, and
Warrant Securities, if any, is required to be delivered under the
Act (including all documents filed with the Commission during
such period which are deemed to be incorporated by reference
therein), in each case in such quantities as you may from time to
time reasonably request.
(f) So long as any of the Securities, and the Warrant
Securities, if any, are outstanding, the Company agrees to
furnish to you (i) as soon as available, copies of all financial
reports to the Company's security holders generally and all
reports and financial statements filed by or on behalf of the
Company with the Commission and the New York Stock Exchange and
(ii) from time to time such other information concerning the
Company as you may reasonably request.
(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not
later than 15 months after the end of the Company's current
fiscal quarter, an earnings statement (which need not be audited)
covering a 12-month period beginning after the date upon which
the Prospectus Supplement is filed pursuant to Rule 424 under the
Act which shall satisfy the provisions of Section 11(a) of the
Act.
(h) The Company will apply the net proceeds of the sale of
the Securities, Warrants, if any, and Warrant Securities, if any,
as set forth in the Prospectus.
(i) The Company will not, without your consent, offer or
sell, or publicly announce its intention to offer or sell, any
debt securities denominated in U.S. dollars, except for the
issuance of (y) commercial paper or (z) bank borrowings in the
ordinary course of the Company's business, during the period
beginning the date of this Agreement and ending the later of the
Closing Date or the date on which any price restrictions on the
sale of the Securities are terminated, but in no event later than
five business days after the Closing Date.
(j) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is
terminated, will pay all expenses incident to the performance of
the Company's obligations hereunder, will pay the expenses of
printing all documents relating to the offering, and will
reimburse the Underwriters for any expenses (including fees and
disbursements of counsel) incurred by them in connection with the
matters referred to in Section 3(d) hereof and the preparation of
memoranda relating thereto, for any filing fee of the New York
Stock Exchange, Inc. relating to the Securities, Warrants, if
any, and Warrant Securities, if any, and for any fees charged by
investment rating agencies for rating the Securities and the
Warrant Securities, if any. If the sale of Securities and
Warrants, if any, provided for in this Agreement is not
consummated by reason of any failure, refusal or inability on the
part of the Company to perform any agreement on its part to be
performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the Underwriters for
all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in
connection with their preparing to market and marketing the
Securities and Warrants, if any, or in contemplation of
performing their obligations hereunder; provided that, except as
provided in this subsection (j) and in Section 7, the
Underwriters shall pay their own costs and expenses, including
the fees and expenses of their counsel, any transfer taxes on the
Securities and Warrants, if any, which they may sell and the
expenses of advertising any offering of the Securities and
Warrants, if any, made by the Underwriters. The Company shall not
in any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this
Agreement.
4. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Underwriter and each person, if any,
participating with the Underwriters in the distribution of the
Securities and Warrants, if any, who is an "underwriter" within the
meaning of Section 2(11) of the Act with respect to the distribution
of the Securities and Warrants, if any (the "Participants"), and each
person, if any, who controls any Underwriter within the meaning of the
Act or any Participant from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to
which that Underwriter, Participant or controlling person may become
subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Prospectus, any document
incorporated by reference in any of the foregoing documents or the
Registration Statement or any Prospectus, as amended or supplemented,
or arises out of, or is 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 shall
reimburse each Underwriter, Participant and such controlling person,
as incurred, for any legal and other expenses reasonably incurred by
that Underwriter, Participant or controlling person in investigating
or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided that the Company shall not be
liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any Prospectus or any
amendment or supplement thereto in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any Underwriter specifically for inclusion therein or was contained in
that part of the Registration Statement consisting of the Form T-1;
and provided further, that the indemnity agreement contained in this
Section 4(a) with respect to losses, claims, damages, liabilities or
actions arising out of or based upon any untrue statement or alleged
untrue statement made in, or omission or alleged omission from, any
Prospectus shall not inure to the benefit of any Underwriter,
Participant or any person controlling such Underwriter or Participant
from whom the person asserting any such losses, claims, damages,
liabilities or action purchased the Securities with respect to which
such losses, claims, damages, liabilities or actions are asserted, if
the Underwriter or Participant failed to send or give a copy of any
Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in any such Prospectus was corrected
in an amended or supplemented Prospectus, unless such failure resulted
from non-compliance by the Company with Section 3(e) hereof. For
purposes of the second proviso to the immediately preceding sentence,
the term Prospectus shall not be deemed to include
the documents incorporated therein by reference, and no Underwriter or
Participant shall be obligated to send or give any supplement or
amendment to any document incorporated by reference in any Prospectus
to any person other than a person to whom such Underwriter or
Participant has delivered such incorporated documents in response to a
written request therefor. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter, Participant or any controlling person.
(b) Each Underwriter shall, severally and not jointly,
indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and any person
who controls the Company within the meaning of the Act from and
against any loss, claim, damage or liability, joint or several, and
any action in respect thereof, to which the Company or any such
director, officer, or controlling person may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any Prospectus or arises out of, or is 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, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representative by or
on behalf of such Underwriter specifically for inclusion therein, and
shall reimburse the Company for any legal and other expenses
reasonably incurred by the Company or any such director, officer, or
controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action. The
foregoing indemnity agreement is in addition to any liability which
any Underwriter may otherwise have to the Company or any of its
directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under
Section 4(a) or 4(b) above of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 4, notify the indemnifying party in writing of the claim or
the commencement of that action, provided that the failure to notify
the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party except to the extent the
indemnifying party is prejudiced thereby. If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the
indemnified party; provided, however, if the defendants in 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, the indemnified party or parties shall have the
right to select separate counsel to represent such indemnified party
in connection with such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section 4 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
(other than reasonable costs of investigation) unless (i) the
indemnified party shall have employed such counsel in accordance with
the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not, in connection with any
one such action, or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses with respect to any period during the pendency of such action
or similar or related actions of more than one separate firm of
attorneys for all indemnified parties so named, designated in writing
by the Representative if the indemnifying party is the Company or by
the Company if the indemnifying party is an Underwriter, it being
further understood, however, that the firm of attorneys so designated
may be changed from time to time with respect to different periods
during the pendency of such action or similar or related actions),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnifying party to represent the indemnified
party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the
indemnifying party. The indemnifying party shall not be liable for any
settlement of any action or claim effected without its consent, which
consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 4
shall for any reason be unavailable to an indemnified party under
Section 4(a) or 4(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters and Participants on the
other from the offering of the Securities and Warrants, if any, or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the
Underwriters and Participants on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters and Participants on the
other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the
Securities and Warrants, if any, (before deducting expenses) received
by the Company bear to the total underwriting discounts and
commissions received by the Underwriters and the Participants with
respect to such offering, in each case as set forth in the table on
the cover page of the Prospectus. The relative faults shall be
determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
Section 4(d) were to be determined by pro rata allocation (even if the
Underwriters and Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to
above in this Section 4(d) shall be deemed to include, for purposes of
this Section 4(d), any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 4(d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Securities and Warrants, if any, underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 4(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements,
if any, with respect to the public offering of the Securities set
forth in the first and third paragraphs under the caption
"Underwriting" in the Prospectus Supplement are correct and were
furnished in writing to the Company by the Representative by or on
behalf of the several Underwriters for inclusion in the Registration
Statement and the Prospectus.
(f) The indemnity agreements contained in this Section 4 and
the representations, warranties and agreements of the Company in
Section 1 and Section 3 shall survive the delivery of the Securities
and Warrants, if any, and shall remain in full force and effect,
regardless of any termination of this Agreement or any investigation
made by or on behalf of any indemnified party.
5. Conditions Subsequent. The obligations of the
Underwriters under this Agreement may be terminated by the
Representative, in its absolute discretion, by notice given to and
received by the Company prior to delivery of and payment for the
Securities and Warrants, if any, if, on or after the date hereof there
shall have occurred any of the following: (a) trading in securities
generally on the New York Stock Exchange is suspended or materially
limited, or minimum prices are established on the New York Stock
Exchange, or (b) a banking moratorium is declared by either Federal or
New York State authorities, or (c) the outbreak or material escalation
of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this clause (c) in the judgment of the
Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities and Warrants, if
any, on the terms and in the manner contemplated by the Prospectus.
6. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Securities
and Warrants, if any, as provided herein shall be subject to the
accuracy, as of the date hereof and the Closing Date (as if made at
the Closing Date), of the representations and warranties of the
Company herein, to the performance by the Company of its obligations
hereunder, and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for that purpose shall have been instituted or, to the knowledge
of the Company or any Underwriter, threatened by the Commission,
and any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or Prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact which in
your opinion is material, or omits to state a fact which in your
opinion is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have
been any material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its
subsidiaries, taken as a whole, or any material adverse change,
or any development involving a prospective material adverse
change in the condition (financial or other), business,
prospects, net worth or results of operations of the Company and
its subsidiaries, taken as a whole, or any downgrading in the
rating accorded any securities of the Company by Xxxxx'x
Investors Service, Inc. or Standard and Poor's Ratings Group
which, in your judgment, makes it impractical or inadvisable to
offer or deliver the Securities on the terms and in the manner
contemplated in the Prospectus.
(d) Xxxxxxxx X. Xxxxx, as counsel for the Company, or such
other counsel for the Company as shall be satisfactory to you,
shall have furnished to you such counsel's opinion, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated and is a
validly existing corporation in good standing under the laws
of Nevada, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified and is in good
standing as a foreign corporation in each country or
jurisdiction wherein the character of property owned or held
under lease by it, or the nature of the business transacted
by it makes such qualification necessary (except where the
failure to so qualify would not have a material adverse
effect upon the Company and its subsidiaries taken as a
whole);
(ii) the Indenture and the Warrant Agreement, if any,
have been duly authorized, executed and delivered, and the
Indenture has been qualified under the Trust Indenture Act;
the Indenture and the Warrant Agreement, if any, constitute
valid and legally binding instruments in accordance with
their respective terms; the Securities, the Warrants, if
any, and the Warrant Securities, if any, have been duly
authorized, and the Securities and Warrants, if any,
delivered on the Closing Date have been duly executed,
authenticated, issued and delivered; the Securities and
Warrants, if any, delivered on the Closing Date constitute,
any Contract Securities when executed, authenticated, issued
and delivered in accordance with the Delayed Delivery
Contracts, if any, the Warrant Agreement, if any, and the
Indenture will constitute, and the Warrant Securities, if
any, when executed, authenticated, issued and delivered
pursuant to the Warrant Agreement, if any, and the Indenture
will constitute, valid and legally binding obligations of
the Company enforceable in accordance with their respective
terms and the terms of the Indenture and the Warrant
Agreement, if any, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Securities,
Warrants, if any, and Warrant Securities, if any, conform to
the description thereof in the Prospectus;
(iii) the Registration Statement has become effective
under the Act and to the best knowledge of such counsel no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or, to the knowledge of such counsel,
threatened by the Commission;
(iv) each part of the Registration Statement, when such
part became effective, and the Registration Statement and
the Prospectus, and any amendment or supplement thereto,
complied as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the
Rules and Regulations; such counsel has no reason to believe
that either any part of the Registration Statement when such
part became effective, or the Registration Statement and the
Prospectus or any amendment or supplement thereto contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and the
documents incorporated by reference in the Registration
Statement or Prospectus, when they became effective under
the Act or were filed with the Commission under the Exchange
Act, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder; it being understood that such counsel
need express no opinion as to the financial statements or
other financial or statistical data included in any of the
documents mentioned in this clause;
(v) the descriptions in the Registration Statement and
Prospectus of legal and governmental proceedings, contracts
and other documents are accurate and fairly present the
information required to be shown; and such counsel does not
know of any statutes or legal or governmental proceedings
required to be described in the Prospectus
which are not described as required, or of any contracts or
documents of a character required to be described in the
Registration Statement or Prospectus (or then required to be
filed under the Exchange Act if upon such filing they would
be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement which are not
described and filed as required;
(vi) to the best of such counsel's knowledge, the
Company is not in violation of its corporate charter or
by-laws, or in default under any material agreement,
indenture or instrument;
(vii) this Agreement and any Delayed Delivery Contracts
have been duly authorized, executed and delivered by the
Company; the performance thereof and the consummation of the
transactions therein contemplated (including, without
limitation, the issuance of the Warrant Securities, if any,
upon the exercise of the Warrants, if any) will not result
in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any
agreement or instrument known to such counsel to which the
Company is a party or by which it is bound or to which any
of the property of the Company is subject, the Company's
charter or by-laws, or any order, rule or regulation known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order
of, or filing with, any court or governmental agency or body
is required for the consummation of the transactions
contemplated by this Agreement and any Delayed Delivery
Contracts in connection with the issuance or sale of the
Securities (including the Contract Securities, if any),
Warrants, if any, or Warrant Securities, if any, by the
Company, except such as have been obtained under the Act and
the Trust Indenture Act and such as may be required under
state securities laws in connection with the sale of the
Securities, Warrants, if any, and Warrant Securities, if
any; and
(viii) the Company is not an "investment company"
within the meaning of that term as defined in the Investment
Company Act of 1940, as amended, and is not subject to
regulation under said Act.
In rendering the opinion set forth in clause (i), counsel
for the Company may rely, as to matters of Nevada law, upon the
opinion of Xxxxxxx Xxxxxx-Xxxx or such other counsel as may be
satisfactory to you.
(e) You shall have received from the Company a certificate,
dated the Closing Date, of its Chairman or its Vice Chairman or
its President or a Vice President stating that:
(i) the representations, warranties and agreements of
the Company in Section 1 are true and correct as of the
Closing Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Section 6(a) have been fulfilled; and
(ii) such officer has carefully examined the
Registration Statement and the Prospectus and, in such
officer's opinion, with respect to the Company (A) as of the
date of the Prospectus, the Registration Statement and the
Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading and (B) since the date of
the Prospectus, no event has occurred which should have been
set forth in a supplement to or amendment of the Prospectus
which has not been set forth in such a supplement or
amendment.
(f) You 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 Warrants, if any, the Warrant Securities, if any,
the Indenture, the Warrant Agreement, if any, the Registration
Statement, the Prospectus and other related matters as you 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.
(g) You shall have received on the Closing Date a letter
from Xxxxxx Xxxxxxxx LLP, addressed to the Underwriters and dated
the Closing Date, substantially to the effect as the draft
delivered on the date hereof appropriately updated, with respect
to the Registration Statement and Prospectus at the time of this
Agreement and confirming that they are independent public
accountants within the meaning of the Rules and Regulations.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance
satisfactory to Cravath, Swaine & Xxxxx, counsel for the Underwriters.
7. Expense Reimbursement. If this Agreement shall be
canceled or terminated by the Underwriters on any of the grounds
referred to or specified in Section 6 hereof, or because of any
failure or refusal on the part of the Company to comply with any of
the terms or to fulfill any of the conditions of this Agreement, the
Company will reimburse the Underwriters severally for all their
out-of-pocket expenses (including the fees and expenses of their
counsel) reasonably incurred by them in connection with the subject
matter of this Agreement.
8. Notices. All notices or communications hereunder shall be
in writing and if sent to you, shall be mailed, delivered or
telegraphed and confirmed to you at your address set forth for that
purpose in Schedule A hereto or, if sent to the Company shall be
mailed, delivered or telegraphed and confirmed to the Company at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention of
Corporate Secretary. Notices to any Underwriter pursuant hereto shall
be mailed, delivered or telegraphed and confirmed to such
Underwriter's address furnished to the Company in writing for the
purpose of communications hereunder. Any party to this Agreement may
change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
9. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and the Underwriters and their respective
successors and the controlling persons, officers and directors
referred to in Section 4 and no other person will have any right or
obligation hereunder.
In all dealings with the Company under this Agreement you
shall act on behalf of each of the several Underwriters, and any
action under this Agreement taken by you or by any one of you
designated in Schedule A hereto will be binding upon all the
Underwriters.
10. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
11. Counterparts. This Agreement may be executed by one or
more of you in one or more counterparts, each of which shall
constitute an original and all of which taken together shall
constitute one and the same Agreement.
If the foregoing correctly sets forth our Agreement, please
so indicate in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company
and the several Underwriters.
Alternatively, the execution of this Agreement by the
Company and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written
communications.
ITT CORPORATION,
by
Title:
ACCEPTED at New York, New York,
as of the date first above
written on behalf of ourselves
and the other Underwriters, if
any, named in Schedule B hereto.
XXXXXXX, SACHS & CO.,
by______________________________
(Xxxxxxx, Xxxxx & Co.)
SCHEDULE A
Underwriting Agreement dated: November 12, 1996
Registration Statement No. 33-63445
Representative: Xxxxxxx, Sachs & Co.
Title of Securities: 6 3/4% Senior Notes due 2003
CUSIP Number: 450679 BV6
Amount of Securities: $250,000,000
Maturity Date: November 15, 2003
Interest Rate: 6 3/4%
Redemption: Not redeemable prior to maturity, except pursuant
to gaming laws.
Indenture: Dated November 15, 1995, between ITT Corporation,
Issuer, and the First National Bank of Chicago, Trustee, as
amended and restated as of December 19, 1995.
Purchase Price: 99.160%, plus accrued interest, if any, from
November 15, 1996.
Depository: The Depository Trust Company
Title of Warrant Securities: N/A
Amount of Warrant Securities: N/A
Maturity Date: N/A
Interest Rate: N/A
Title of Warrant Agreement: N/A
Warrant Agent: N/A
Number of Warrants: per each $ N/A principal amount of
Warrant Securities
Exercise Period: N/A
Exercise Price: N/A
Warrant Securities accrue interest from N/A 19
Delayed Delivery: N/A
Fee: N/A
Minimum principal amount of each Contract: N/A
Maximum aggregate principal amount of all Contracts: N/A
Closing: November 15, 1996.
Office for delivery of Securities, and Warrants, if any:
Xxxxxxx, Xxxxx & Co.
Office for payment for Securities, and Warrants, if any:
Cravath, Swaine & Xxxxx
Date and time of Closing: 9:30 A.M., Friday, November 15,
1996
Office for Checking Securities, and Warrants, if any: The
First National Bank of Chicago
Underwriting commissions or other compensation: N/A
Underwriter designated pursuant to Section 9: Xxxxxxx, Sachs
& Co.
Address for notices per Section 8: Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000
SCHEDULE B
Principal Amount of
6 3/4% Notes to
Underwriter be Purchased
Xxxxxxx, Sachs & Co.......... $ 50,000,000
Chase Securities Inc......... 50,000,000
Lazard Freres & Co. LLC...... 50,000,000
X.X. Xxxxxx Securities Inc... 50,000,000
UBS Securities LLC........... 50,000,000
------------
Total $250,000,000
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