1
EXHIBIT (1)
Draft of March 13, 1996
-----------------------
TRINOVA CORPORATION
UNDERWRITING AGREEMENT
[Name(s) of Underwriter(s)] ____________, 199
Dear Sirs:
TRINOVA Corporation, an Ohio corporation (the "Company"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") ____________ principal amount of _____________________________
(the "Securities"), to be issued under an indenture dated as of March __, 1996
between the Company and NBD Bank, as trustee (the "Trustee") (the "Indenture").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement on Form S-3 (file number 333-_____), relating to certain debt
securities (the "Shelf Securities") to be issued from time to time by the
Company in accordance with Rule 415 under the Securities Act. The Company also
has filed with, or proposes to file with, the Commission pursuant to Rule 424
under the Securities Act a prospectus supplement specifically relating to the
Securities. The
2
aforementioned registration statement, as amended to the date of this
Agreement, including the registration statement of the Company on Form S-3
(file number 33-9127), as amended, are hereinafter referred to collectively as
the "Registration Statement"; and the related prospectus covering the Shelf
Securities dated March __, 1996 is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus supplement
dated ________, 199_ specifically relating to the Securities in the form first
used to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424, or the
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
which were filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Exchange
Act") on or before the date of this Agreement or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be;
and any reference to "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed under
the Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus, any preliminary prospectus or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule I hereto at a purchase price of ____ percent of
the principal amount thereof, plus accrued interest, if any, from _________,
199_ to the date of payment and delivery.
2. The Company understands that the Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
2
3
3. Payment for the Securities shall be made to the Company or to
its order by certified or official bank check or checks payable in, or by wire
transfer of, immediately available funds at 10:00 A.M., New York City time, on
the third (fourth if the pricing occurs after 4:30 P.M., New York City time)
business day after the date of this Agreement at the offices of Xxxxx & Xxxx,
Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other time and
place on the same or such other date, not later than the tenth Business Day
thereafter, as the Underwriters and the Company may agree in writing). Such
payment will be made upon delivery to The Depository Trust Company of the
Global Security (as defined in the Prospectus) representing the Securities
registered in the name of The Depository Trust Company's nominee, Cede & Co.
The time and date of such payment and delivery with respect to the Securities
are referred to herein as the "Closing Date".
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared
effective by the Commission under the Securities Act; 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 the Company, threatened by the Commission; and the
Registration Statement (as amended if the Company shall have filed any
amendments thereto) complies, or will comply, in all material respects
with the Securities Act and the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and does not and will not,
as of the applicable effective date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any 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 under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter expressly for use therein;
3
4
(b) the documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and, for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Securities,
any further documents so filed and incorporated by reference in the
Prospectus, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange
Act, as applicable, and will not contain 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 under which they
were made, not misleading;
(c) the financial statements, and the related notes
thereto included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their operations and the changes in
their consolidated cash flows for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change, or any development involving a prospective change,
which could reasonably be expected to have a material adverse effect
on the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and
its subsidiaries taken as a whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with corporate power
4
5
and authority to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(f) each of Aeroquip Corporation and Xxxxxxx,
Incorporated (collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation under the laws
of its jurisdiction of incorporation, with corporate power and
authority to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all the outstanding shares
of capital stock of each Subsidiary have been duly authorized and
validly issued, are fully-paid and non-assessable, and are owned by
the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company, except as rights to indemnity and
contribution hereunder may be limited by applicable law;
(h) the Securities have been duly authorized by the
Company, and, when issued, delivered and authenticated pursuant to
this Agreement and the Indenture, will have been duly executed, issued
and delivered and will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized, executed and delivered by the
Company, qualified under the Trust Indenture Act and constitutes a
valid and binding instrument of the Company; and the Securities and
the Indenture conform to the descriptions thereof in the Prospectus;
(i) neither the Company nor any Subsidiary is, or with
the giving of notice or the lapse of time or both would be, in
violation of or in default under, its Articles of
5
6
Incorporation or its Code of Regulations or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it
or any of them or any of their respective properties is bound, except
for violations and defaults which individually and in the aggregate
are not material to the Company and its subsidiaries taken as a whole
or to the holders of the Securities; the issue and sale of the
Securities and the performance by the Company of all of its
obligations under the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Articles of Incorporation or the
Code of Regulations of the Company or any of its subsidiaries or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as have been obtained
under the Securities Act and the Trust Indenture Act and as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Securities by the Underwriters;
and
(j) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or
any of its subsidiaries is or may be a party or to which any property
of the Company or any of its subsidiaries is or may be subject which
could individually or in the aggregate reasonably be expected to have
a material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole and,
to the best of the Company's knowledge, no such proceedings are
threatened or
6
7
contemplated by governmental authorities or threatened by others; and
there are no contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required.
5. The Company covenants and agrees with each Underwriter as
follows:
(a) to file the Prospectus in a form approved by the
Underwriters pursuant to Rule 424 under the Securities Act not later
than the Commission's close of business on the second Business Day
following the date of determination of the offering price of the
Securities;
(b) to deliver to each Underwriter and counsel for the
Underwriters, at the expense of the Company, a copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to deliver to each Underwriter as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as the Underwriters may reasonably
request;
(c) from the date hereof and prior to the Closing Date,
to furnish to the Underwriters a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus, for their
review, and not to file any such proposed amendment or supplement to
which the Underwriters reasonably object;
(d) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period, to advise the Underwriters promptly, and to confirm
such advice in writing, (i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Company of any
7
8
notification with respect to any suspension of the qualification of
the Securities for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and to
use its best efforts to prevent the issuance of any such stop order or
notification and, if issued, to obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the
public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary, in
the opinion of counsel for the Company or counsel for the
Underwriters, to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing at
the time the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary, in the opinion of counsel for the Company or
counsel for the Underwriters, to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at the expense of
the Company, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which
Securities may have been sold by the Underwriters and to any other
dealers upon request, such amendments or supplements to the Prospectus
as may, in the opinion of counsel for the Company or counsel for the
Underwriters, be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Underwriters shall reasonably request and to continue such
qualification in effect so long as reasonably required for
distribution of the Securities and to pay all fees and expenses
(including fees and disbursements of counsel for the Underwriters)
reasonably incurred in connection with such qualification and in
connection with the determination of the eligibility of the Securities
for investment under the laws of such jurisdictions as the
Underwriters may designate; provided that the Company shall not be
required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders
and to the Underwriters as soon as practicable an
8
9
earnings statement covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after
the effective date of the Registration Statement, which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(h) so long as the Securities are outstanding, to furnish
to the Underwriters copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national or international securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are
substantially similar to the Securities without the prior written
consent of the Underwriters; and
(j) to pay all costs and expenses incident to the
performance of its obligations hereunder, including without limiting
the generality of the foregoing, all costs and expenses (i) incident
to the preparation, issuance, execution, authentication and delivery
of the Securities, including any expenses of the Trustee, (ii)
incident to the preparation, printing and filing under the Securities
Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and
supplements thereto), (iii) incurred pursuant to Section 5(f) of this
Agreement, (iv) in connection with the listing of the Securities on
any stock exchange, (v) related to any filings with the National
Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and
shipping, as herein provided and (vii) payable to rating agencies in
connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein shall be true and correct on and as of the
9
10
Closing Date as if made on and as of the Closing Date and the Company
shall have complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(b) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time period
prescribed for such filing by the Securities Act; no stop order
suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied
with to the satisfaction of the Underwriters;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have occurred
any downgrading, nor shall any notice have been given of (i) any
intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any change or any
development involving a change, which could reasonably be expected to
have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) the Underwriters shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to them to the effect set forth in subsections (a)
through (c) of this Section and to the further effect that there has
not occurred any change, or any development involving a change, which
could reasonably be expected to have a material adverse effect on the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that
10
11
set forth or contemplated in the Prospectus or setting forth any such
change or development in reasonable detail;
(f) Xxxxx X. Xxxxx, General Counsel of the Company, shall
have furnished to the Underwriters his written opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with corporate
power and authority to own its properties and conduct its
business as described in the Prospectus as then amended or
supplemented;
(ii) the Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole;
(iii) each Subsidiary has been duly incorporated
and is validly existing as a corporation under the law of its
jurisdiction of incorporation with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified and in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole; and all of the issued shares of capital
stock of each Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iv) other than as set forth or contemplated in
the Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge,
threatened to which the Company or any of its subsidiaries is
or may be a party or to which any property of the Company or
its subsidiaries is or may
11
12
be the subject which could individually or in the aggregate
reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole; to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others; and such counsel does not
know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described
as required;
(v) neither the Company nor any of the
Subsidiaries is, or with the giving of notice or the lapse of
time or both would be, in violation of its Articles of
Incorporation or its Code of Regulations, except for
violations which could individually or in the aggregate not
reasonably be expected to have a material adverse effect on
the general affairs, business, prospects, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a
whole, and the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will any such
action result in any violation of the provisions of the
Articles of Incorporation or the Code of Regulations of the
Company or any of its subsidiaries or any applicable law or
statute (except as rights to indemnity and contribution
hereunder may be limited by applicable law) or any order, rule
or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Subsidiaries or any
of their respective properties;
12
13
(vi) the statements incorporated by reference in
the Prospectus from Item 3 of Part 1 of the Company's most
recent Annual Report on Form 10-K and in the Registration
Statement in Item 15, in so far as such statements constitute
a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents or proceedings;
and
(vii) (A) such counsel is of the opinion that
each document incorporated by reference in the Registration
Statement and the Prospectus (except for the financial
statements and supporting schedules included therein as to
which such counsel need express no opinion) and any other
document filed thereafter and incorporated by reference into
the Registration Statement and the Prospectus complied as to
form when filed with the Commission in all material respects
with the Exchange Act, (B) such counsel is of the opinion that
the Registration Statement and the Prospectus and any
amendments and supplements thereto (except for the financial
statements and supporting schedules included therein and that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and the Trust Indenture Act, (C) nothing has come to the
attention of such counsel to cause him to believe that (except
for the financial statements and supporting schedules included
therein and that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee as to
which such counsel need express no belief) the Registration
Statement, on the date of this Agreement, contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (D) nothing has come to
the attention of such counsel to cause him to believe that the
Prospectus (except for the financial statements and supporting
schedules included therein as to which such counsel need
express no belief) as amended or supplemented, if applicable,
to the Closing Date contains an untrue statement of a material
fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the
13
14
circumstances under which they were made, not misleading;
(g) Xxxxx, Day, Xxxxxx & Xxxxx, counsel for the Company,
shall have furnished to the Underwriters, their written opinion, dated
the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid and
binding obligation of the Company, except as rights to
indemnity and contribution hereunder may be limited by
applicable law;
(ii) the Securities have been duly authorized,
executed and delivered by the Company, and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under
the Trust Indenture Act and constitutes a valid and binding
instrument of the Company;
(iv) no consent, approval or authorization or
order of any governmental agency or body is required for the
issue and sale of the Securities, except such as have been
obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the
Securities by the Underwriters;
(v) the statements in the Prospectus under the
captions "Description of Securities" and "Underwriting",
insofar as such statements purport to summarize the provisions
of the documents referred to therein, present fair summaries
of such provisions; and
(vi) (A) such counsel is of the opinion that the
Registration Statement and the Prospectus and any amendments
and supplements thereto (except for the financial statements
and supporting schedules included therein and that part of the
Registration Statement
14
15
which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture
Act, (B) no facts have come to the attention of such counsel
to cause them to believe that (except for the financial
statements and supporting schedules included therein and that
part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee as to which such
counsel need express no belief) the Registration Statement, on
the date of this Agreement, contains an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (C) no facts have come to the attention of
such counsel to cause them to believe that the Prospectus
(except for the financial statements and supporting schedules
included therein as to which counsel need express no belief)
as amended or supplemented, if applicable, to the Closing Date
contains an untrue statement of a material fact or omits 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.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Ohio, Michigan and Delaware, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel
reasonably acceptable to the Underwriters' counsel, familiar with the
applicable laws; (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company
and certificates or other written statements of officials of
jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinions of such
counsel for the Company shall state that the opinion of any such other
counsel is in form satisfactory to such counsel and, in such counsel's
opinion, he or they, as the case may be, and the Underwriters are
justified in relying thereon. With respect to the matters to be
covered in subparagraph (f)(vii) and (g)(vi) above, Xxxxx X. Xxxxx and
Xxxxx, Day, Xxxxxx & Xxxxx may state that
15
16
their opinions and beliefs are based upon their participation in the
preparation of the Prospectus and any amendment or supplement thereto
and review and discussion of the contents of the Registration
Statement and the Prospectus and that, except as specified, they have
not independently verified and are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
information contained in the Registration Statement and Prospectus;
(h) on the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriters a letter, dated such date, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus;
(i) the Underwriters shall have received on and as of the
Closing Date an opinion of Xxxxx & Xxxx, counsel to the Underwriters,
with respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as
the Underwriters may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters; and
(j) on or prior to the Closing Date, the Company shall
have furnished to the Underwriters such further certificates and
documents as the Underwriters shall reasonably request.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished
16
17
to the Company in writing by such Underwriter expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the benefit
of any person controlling such Underwriter) from whom the person asserting any
such losses, claims, damages or liabilities purchased Securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) and, if required by law, a copy of the Prospectus (as so
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Securities to such
person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter expressly
for use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "Indemnified Person") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
17
18
between them. It is understood that the Indemnifying Person shall not, in
connection with any proceedings or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named Underwriters on
Schedule I hereto and any such separate firm for the Company, its directors,
its officers who sign the Registration Statement and such control persons of
the Company or authorized representatives shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable
by such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
and the total underwriting discounts and the commissions received
18
19
by the Underwriters bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, 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 contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitation set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
persons guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of the Securities set forth opposite their
names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any
19
20
person controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and (iii)
acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may
be terminated in the absolute discretion of the Underwriters, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of or guaranteed by
the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Underwriters, is material and adverse and which,
in the judgment of the Underwriters, makes it impracticable to market the
Securities on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any Underwriter shall fail or refuse
to purchase Securities which it has agreed to purchase under this Agreement,
and the aggregate principal amount of Securities which such defaulting
Underwriter agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Securities, the other Underwriter[s]
shall be obligated to purchase their pro rata portion of the Securities which
such defaulting Underwriter agreed but failed or refused to purchase on such
date. If, on the Closing Date, any Underwriter shall fail or refuse to
purchase Securities and the aggregate principal amount of Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased, and arrangements satisfactory
to the non-defaulting Underwriter[s] and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of the non-defaulting
Underwriter[s] or the Company. In any such case, either the non-defaulting
Underwriter[s] or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from
20
21
liability in respect of any default by such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement or any condition of the Underwriters' obligations cannot be
fulfilled, the Company agrees to reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and expenses of
their counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering of the Securities.
11. This Agreement shall inure to the benefit of and be binding
upon the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. No purchaser of
Securities from any Underwriter shall be deemed to be a successor merely by
reason of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Underwriters jointly or by [managing Underwriter] alone on behalf of the
Underwriters, and any such action taken by the Underwriters jointly or by
[managing Underwriter] alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication.
Notices to the Underwriters shall be given to them at [address of
managing Underwriter]. Notices to the Company shall be given to it at Trinova
Corporation, 3000 Xxxxxxx, Xxxxxx, Xxxx 00000-0000, Attention: Xxxxx X.
Xxxxx, Vice President and General Counsel, Telecopier No: (000) 000-0000.
21
22
13. This Agreement may be signed in counterparts, each of which
shall be an original and all of which together shall constitute one and the
same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
Very truly yours,
TRINOVA Corporation
By: ___________________
Name:
Title:
Accepted: ________, 199_
[Name(s) of Underwriter(s)]
By: [Name of Managing Underwriter]
On behalf of each of the Underwriters
By: ___________________________
Name:
Title:
22
23
SCHEDULE I
Principal Amount
Underwriter of Securities
------------------------------------------------------------- -----------------
[Name(s) of Underwriter(s)] . . . . . . . . . . . . . . . . . $___________
-----------------
Total $___________
=================
