1
EXHIBIT 1.1
GATX Corporation
$3.875 Cumulative Convertible Preferred Stock
Standby Agreement
New York, New York
May 16, 1997
Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
GATX Corporation, a New York corporation (the "Company"), intends to call
for redemption on June 16, 1997 (the "Redemption Date"), all of its outstanding
$3.875 Cumulative Convertible Preferred Stock (the "Redeemable Securities") at
$51.1625 per share, plus accrued dividends from May 1, 1997 to the Redemption
Date of $.4951, for a total redemption price of $51.6576 (the "Redemption
Price") per share of Redeemable Securities. The Redeemable Securities are
convertible into shares of the Common Stock, $.625 par value, of the Company
("Common Stock") at any time prior to 5:00 P.M., New York City time, on the
Redemption Date.
In order to ensure that the Company will have available sufficient funds
to redeem any Redeemable Securities not converted prior to or on the Redemption
Date, the Company desires to make arrangements pursuant to which Salomon
Brothers Inc (the "Purchaser") will, following the Redemption Date, purchase
shares of Common Stock that would have been issuable upon the conversion of the
Redeemable Securities that have not been surrendered for conversion prior to
5:00 P.M., New York City time, on the Redemption Date.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, the Purchaser as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (g) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (file number
333-____) on such Form, including a related preliminary prospectus, for the
registration under the Act of the issuance by the Company of the shares of
Common Stock issuable upon conversion by the Purchaser of Redeemable
Securities and the sale by the Purchaser of any shares of Common Stock that
may be acquired by it hereunder. The Company may have filed one or more
amendments thereto, including the related preliminary prospectus, each of
which
2
has previously been furnished to you. The Company will next file with the
Commission one of the following: (i) prior to effectiveness of such
registration statement, a further amendment to such registration
statement, including the form of final prospectus, (ii) a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4) or (iii) a final prospectus
in accordance with Rules 415 and 424(b)(2) or (5). In the case of clause
(ii), the Company has included in such registration statement, as amended at
the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the Prospectus
with respect to the Securities (as defined below) and the offering thereof.
As filed, such amendment and form of final prospectus, or such final
prospectus, shall contain all Rule 430A Information, together with all other
such required information, with respect to the Securities and the offering
thereof and, except to the extent the Purchaser shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond those contained in the latest Preliminary Prospectus)
as the Company has advised you, prior to the Execution Time, will be included
or made therein. If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b) and, on the Redemption Date, on the Redemption Date and on the Closing
Date (as hereinafter defined), the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable requirements of the
Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and, on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b), on the Redemption
Date, on the Redemption Date and on the Closing Date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted
from the Registration Statement or the Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Purchaser specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement thereto).
(c) The Redeemable Securities are convertible into Common Stock at a
rate of 1.1494 shares of Common Stock per share of Redeemable Securities. At
the Execution Time, there were outstanding 3,390,880 shares of Redeemable
Securities; the redemption of all the outstanding Redeemable Securities has
been duly authorized by the Company;
2
3
by the close of business on the date of execution hereof, all the
Redeemable Securities will have been duly called for redemption in accordance
with the certificate of incorporation of the Company (the "Certificate of
Incorporation"); and the right to convert the Redeemable Securities into
shares of Common Stock will, as a result of such call, expire at 5:00 P.M.,
New York City time, on the Redemption Date. A copy of the form of
notice of redemption and the related letter of transmittal (collectively, the
"Notice of Redemption") has been heretofore delivered to you by the Company.
The Redeemable Securities have been duly and validly authorized and issued
and are fully paid and nonassessable.
(d) The Company has neither taken nor will take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or that might reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the Company to
facilitate the conversion of the Redeemable Securities.
(e) The Company has neither paid or given, nor will pay or give,
directly or indirectly, any commission or other remuneration for soliciting
the conversion of Redeemable Securities into Common Stock and cash.
(f) None of the issue and sale of the Securities (as hereinafter
defined), the consummation of any other of the transactions herein
contemplated or the fulfillment of the terms hereof will conflict with,
result in a breach or violation of, or constitute a default under, any law or
the Certificate of Incorporation or bylaws of the Company or the terms of any
material indenture or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or is bound that is material to
the Company and its subsidiaries, taken as a whole, or any judgment, order or
decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its subsidiaries.
(g) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective and each date after the date hereof on which a
document incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is executed
and delivered by the parties hereto. "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in paragraph (a) above and any preliminary
prospectus included in the Registration Statement at the Effective Date that
omits Rule 430A Information. "Prospectus" shall mean the prospectus relating
to the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus relating to the Securities included in the
Registration Statement at the Effective Date. "Registration Statement" shall
mean the registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time,
3
4
in the form in which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 415," "Rule 424," "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act. "Rule
430A Information" means information with respect to the Securities and
the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any reference
herein to the Registration Statement, a Preliminary Prospectus 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 which
were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of such Preliminary Prospectus
or the Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of any Preliminary Prospectus or the Prospectus, as the
case may be, deemed to be incorporated therein by reference.
(h) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect;
and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission.
(i) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws of
the jurisdiction in which it is chartered or organized, is duly qualified
to do business and is in good standing as a foreign corporation under the
laws of each jurisdiction in which its ownership of property or the
conduct of its business requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and has the power and
authority necessary to own or hold its property and to conduct the
business in which it is engaged.
(j) The Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company (including the
Redeemable Securities) conforms in all material respects to the
description thereof contained in the Prospectus; the outstanding shares
of Common Stock have been duly and validly authorized and issued and are
fully paid and nonassessable; the shares of Common Stock issuable upon
conversion of the Redeemable Securities have been duly and validly
authorized and, when issued and delivered upon conversion of the
Redeemable Securities in accordance with the Certificate of
Incorporation, will be fully paid and nonassessable and free and clear of
all liens and restrictions on transfer; the Purchased Securities have
been duly and validly authorized and, when issued and delivered to and
paid for by the Purchaser pursuant to this Agreement, will be fully paid
and nonassessable and free and clear of all liens and restrictions on
transfer; the Purchased Securities have been, or prior to the
4
5
Closing Date will be, and the shares of Common Stock issuable upon
conversion of the Redeemable Securities have been, duly and validly
authorized for listing, subject to official notice of issuance, on the
New York Stock Exchange, the Chicago Stock Exchange and the London Stock
Exchange; the certificates for the Securities are in valid and sufficient
form; and the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe for
the Securities or the shares of Common Stock issuable upon conversion of
the Redeemable Securities.
(k) This Agreement has been duly authorized, executed and delivered
by the Company.
(l) Neither the Company nor any of its subsidiaries is in violation
of its corporate charter or bylaws or in default under any agreement,
indenture or instrument, the effect of which violation or default would
be material to the Company and its subsidiaries, taken as a whole; and,
except such as has been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of this Agreement.
(m) Except as described in the Registration Statement and the
Prospectus, there has not been any material adverse change in, or any
adverse development which materially affects or will materially affect,
the business, properties, condition (financial or other) or results of
operations of the Company and its subsidiaries, taken as a whole, since
the dates as of which information is given in the Registration Statement
and the Prospectus.
(n) Ernst & Young LLP, whose reports have been incorporated by
reference or included in the Company's most recent Annual Report on Form
10-K which is incorporated by reference in the Prospectus, are
independent public accountants as required by the Act and the rules and
regulations thereunder. (The term "Ernst & Young" when used in this
Agreement shall include any successor independent accounting firm of
recognized national standing that has served or shall serve as the
Company's independent public accountants.)
(o) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which
might reasonably be expected to result in any material adverse change in
the business, properties, condition (financial or other), results of
operations or prospects of the Company and its subsidiaries, taken as a
whole, or which is required to be disclosed in the Registration
Statement.
(p) The financial statements incorporated by reference in the
Registration Statement and the Prospectus present, or (in the case of any
amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will
present, fairly, the financial condition and results of operations of the
Company and
5
6
its subsidiaries taken as a whole, at the dates and for the periods
indicated, and have been, and (in the case of any amendment or supplement
to any such document, or any material incorporated by reference in any
such document, filed with the Commission after the date as of which this
representation is being made) will be, prepared in all material respects
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, and the supporting
schedules incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated therein.
(q) The documents incorporated by reference in the Prospectus have
been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will be, prepared by the Company in all material respects
in conformity with the applicable requirements of the Act and the
Exchange Act and the respective rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date
as of which this representation is being made) will be, timely filed as
required thereby.
(r) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Act or by the
rules and regulations of the Commission thereunder, or which were
required to be filed as exhibits to any document incorporated by
reference in the Prospectus by the Exchange Act or the rules and
regulations of the Commission thereunder, which have not been filed as
exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by the rules and
regulations of the Commission under the Act and the Exchange Act as
required.
(s) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, except for such certificates, authorizations and permits the
failure to possess which would not result in a material adverse change in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, and
neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
(t) There are no holders of securities (debt or equity) of the
Company or any of its subsidiaries, or holders of rights, options or
warrants to obtain securities of the
6
7
Company or any of its subsidiaries, who have the right to have securities
held by them registered by the Company under the Act.
2. Purchase and Conversion of Redeemable Securities. Subject to
the terms and conditions and in reliance upon the representations and
warranties herein set forth:
(a) The Purchaser agrees to surrender for conversion into Common
Stock prior to 5:00 P.M., New York City time, prior to or on the
Redemption Date all Redeemable Securities purchased by the Purchaser
pursuant to Section 4 hereof or otherwise acquired by the Purchaser. The
shares of Common Stock issued to the Purchaser upon the conversion of
Redeemable Securities are referred to as the "Conversion Securities."
(b) If any Redeemable Securities have not been surrendered for
conversion prior to 5:00 P.M., New York City time, on the Redemption
Date, at the option of the Company, exercisable by giving notice in
writing to the Purchaser not later than 9:00 P.M., New York City time, on
the Redemption Date, the Company shall sell to the Purchaser, and the
Purchaser shall purchase from the Company, at a purchase price of $44.94
per share, such number of shares of Common Stock as shall be specified in
such notice (but not in excess of such number of shares of Common Stock
as would have been issuable upon the conversion of all Redeemable
Securities not surrendered for conversion). The shares of Common Stock
to be purchased pursuant to this Section 2(b) are referred to as the
"Purchased Securities" and, together with the Conversion Securities, the
"Securities."
(c) It is understood that the Purchaser intends to resell the
Securities from time to time at prices prevailing in the open market. On
or prior to the fifteenth business day after the Redemption Date, the
Purchaser shall remit to the Company 50% of the excess, if any, of (i)
the aggregate proceeds received by the Purchaser from the sale of
Purchased Securities (net of selling concessions, transfer taxes and
other expenses of sale) over (ii) an amount equal to $44.94 multiplied by
the number of Purchased Securities sold by the Purchaser. Upon
completion of the sale of the Purchased Securities, the Purchaser shall
furnish to the Company a statement setting forth the aggregate proceeds
received on the sale thereof and the applicable selling concessions,
transfer taxes and other expenses of sale. For purposes of the foregoing
determination, any Purchased Securities not sold by or for the account of
the Purchaser prior to the close of business on the tenth business day
after the Redemption Date shall be deemed to have been sold on such tenth
business day for an amount equal to the last reported sale price of the
Common Stock on such day. Nothing contained herein shall limit the right
of the Purchaser, in its discretion, to determine the price or prices at
which, or the time or times when, any Securities shall be sold, whether
or not prior to the Redemption Date and whether or not for long or short
account.
(d) Delivery of and payment for the Purchased Securities shall be
made at 10:00 A.M., New York City time, on June 17, 1997, which date and
time may be
7
8
postponed by agreement between the Purchaser and the Company (such date
and time of delivery and payment for the Purchased Securities being
herein called the "Closing Date"). Delivery of the Purchased Securities
shall be made to the Purchaser against payment by the Purchaser of the
purchase price thereof (less the amount of the Redemption Deposit, if
any, not repaid to the Purchaser pursuant to paragraph (e) below) to or
upon the order of the Company by wire transfer to an account designated
in writing by the Company, payable in same-day funds. Delivery of the
Purchased Securities shall be made at such location as the Purchaser
shall reasonably designate at least one business day in advance of the
Closing Date, and the closing of the purchase and sale of the Purchased
Securities shall be made at the office of Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, New York, New York. Certificates for the Purchased Securities
shall be registered in such names and in such denominations as the
Purchaser may request in advance of the Closing Date.
The Company agrees to have the Purchased Securities available for
inspection, checking and packaging by the Purchaser in New York, New York
prior to the Closing Date.
(e) At the option of the Company, the Company may require (under the
terms and conditions set forth in this paragraph) the Purchaser to
advance to the Company on a secured basis the funds required to effect
the redemption of the Redeemable Securities on the Redemption Date. As
soon as practicable after the close of business on the business day
preceding the Redemption Date (but in any event no later than 9:00 P.M.,
New York City time), the Company shall notify the Purchaser in writing of
the aggregate number of the Redeemable Securities that have not
theretofore been duly surrendered for conversion as described above (the
"Unconverted Securities"). On the Redemption Date, the Purchaser shall
advance to the Company the amount requested by the Company to effect the
redemption of the Redeemable Securities (which may be an amount up to the
amount required by the terms of the Certificate of Incorporation to
redeem the Unconverted Securities on the Redemption Date) by depositing
such amount (the "Redemption Deposit") by wire transfer, payable in
same-day funds, with ChaseMellon Shareholder Services, L.L.C. on behalf
of the Company; provided, however, that (i) the Company shall have
delivered to the Purchaser by 11:00 A.M., New York City time, on the
Redemption Date, a certificate signed by the Chairman of the Board,
President and Chief Executive Officer and the principal financial or
accounting officer of the Company (A) stating the amount of the
Redemption Deposit, (B) confirming as of the Redemption Date the
statements in the certificate required by Section 6(d) and (C) stating
that they are not aware of any information or any current or potential
event that would make it impossible or impracticable for any of the other
closing conditions set forth in Section 6 to be satisfied, either as of
the Redemption Date or as of the Closing Date, and (ii) the Company, the
Purchaser and ChaseMellon Shareholder Services, L.L.C. shall have entered
into a pledge and security agreement, in form and substance reasonably
satisfactory to the Purchaser, to secure the obligation of the Company to
repay the Redemption Deposit to the Purchaser, and the Purchaser shall
have obtained a valid and perfected security interest in the Redemption
Deposit, subject to no prior or equal lien
8
9
(except that such funds shall be available for payment of the Redemption
Price with respect to any Redeemable Securities surrendered for
redemption on or prior to the Redemption Date to the extent that the
Redemption Price is paid by ChaseMellon Shareholder Services, L.L.C. on
the Redemption Date to surrendering holders of the Convertible Preferred
Shares). The Company shall repay, or cause ChaseMellon Shareholder
Services, L.L.C. to repay, to the Purchaser on the Closing Date, in
same-day funds, the sum of any such Redemption Deposit plus interest
thereon calculated at the Purchaser's cost of funds (as certified by the
Purchaser) on any such Redemption Deposit from and including the date of
such deposit to but excluding the date of repayment.
3. Compensation. As compensation for the commitment of the Purchaser
hereunder, the Company will pay to the Purchaser an amount equal to the sum of
(i) $2,277,143 plus (ii) if the aggregate number of the Purchased Securities
exceeds 194,873 shares, an additional $1.57 per share for the aggregate number
of the Securities.
Such compensation shall be paid to the Purchaser by wire transfer to
an account designated in writing by the Purchaser, payable in same-day funds on
(A) if the Purchaser is required to purchase any Purchased Securities, the
Closing Date, or (B) otherwise, as soon as practicable after the Redemption
Date (but in no event later than two business days thereafter).
4. Additional Purchases. The Purchaser may purchase Redeemable
Securities, in the open market or otherwise, in such amounts and at such prices
as the Purchaser may deem advisable. All Redeemable Securities so purchased
will be converted by the Purchaser into Common Stock in accordance with Section
2(a) hereof. The Common Stock acquired by the Purchaser upon conversion of any
Redeemable Securities acquired pursuant to this Section 4 may be sold at any
time or from time to time by the Purchaser. It is understood that, for the
purpose of stabilizing the price of the Common Stock or otherwise, the
Purchaser may make purchases and sales of Common Stock, in the open market or
otherwise, for long or short account, on such terms as it may deem advisable
and it may overallot in arranging sales.
5. Agreements. The Company agrees with the Purchaser that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering
of the Securities, the Company will not file any amendment of the
Registration Statement or supplement to the Prospectus unless the Company
has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object in writing. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule
424(b), the Company will cause the Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Purchaser of such timely
filing. The Company will promptly advise the Purchaser (i) when the
Registration Statement, if not effective at the Execution Time, and any
9
10
amendment thereto, shall have become effective, (ii) when the Prospectus,
and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the Securities, any amendment to the Registration
Statement shall have been filed or become effective, (iv) of any request
by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (i) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance and (ii) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Purchaser an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Purchaser and counsel for the
Purchaser, without charge, copies of manually executed signature pages to
the Registration Statement, it being understood that the originals of
such pages will be retained in the Company's files as required by the
rules of the Commission, and copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by
the Purchaser or dealer may be required by the Act, as many copies of
each Preliminary Prospectus and the Prospectus and any supplement thereto
as the Purchaser may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to the
transactions contemplated hereby. The Company will pay all transfer
taxes as may be imposed on the Purchaser in connection with their
purchase of Redeemable Securities pursuant hereto.
(e) The Company will arrange for the qualification of the Securities
for sale under the laws of such jurisdictions as the Purchaser may
designate, and will maintain such qualifications in effect so long as
required for the distribution of the Securities;
10
11
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified.
(f) The Company will mail or cause to be mailed not later than the
date of execution hereof the Notice of Redemption by first class mail to
the registered holders of the Redeemable Securities as of the close of
business on the business day prior to the date of execution hereof, which
mailing will conform to the requirements of the Certificate of
Incorporation. The Company will not withdraw or revoke the Notice of
Redemption or attempt to do so.
(g) The Company will advise the Purchaser daily of the amount of
Redeemable Securities surrendered in the previous day for redemption or
for conversion.
(h) The Company will not take any action the effect of which would
be to require an adjustment in the conversion price of the Redeemable
Securities.
(i) The Company will not, prior to the Redemption Date (and, if the
aggregate number of the Purchased Securities exceeds 194,873 shares, for
an additional period of 90 days following the Redemption Date), without
the prior written consent of the Purchaser, (A) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, or
announce the offering of, any shares of Common Stock (other than the
Securities) or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities
are now owned by the Company or are hereafter acquired) or (B) enter into
any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (A) or (B) above is to
be settled by delivery of Common Stock or such other securities, in cash
or otherwise; provided, however, that the Company may issue and sell
Common Stock pursuant to any employee stock option plan, incentive
compensation program or dividend reinvestment plan of the Company in
effect at the Execution Time and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
6. Conditions to the Obligations of the Purchaser. The obligations
of the Purchaser hereunder to convert Redeemable Securities and to purchase any
Purchased Securities shall be subject to the accuracy of the representations
and warranties on the part of the Company contained herein as of the Execution
Time, each Effective Date occurring after the Execution Time, the Redemption
Date and, as to the purchase of the Purchased Securities, the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Purchaser agrees in writing to a later
time, the Registration
11
12
Statement shall have become effective not later than 12:00 Noon, New York
City time, on the date of execution hereof; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) On the date of this Agreement and on the Closing Date, the
Company shall have furnished to the Purchaser the opinion of ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇, counsel for the Company, dated the date of this Agreement and
the Closing Date, respectively, to the effect that:
(i) the Company (1) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and (2) is duly qualified
to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business, except where the failure to so qualify
and be in good standing as a foreign corporation would not,
individually or in the aggregate, have a material adverse effect on
the Company and its subsidiaries, taken as whole;
(ii) each of General American Transportation Corporation, GATX
Financial Services, Inc., GATX Terminals Corporation, GATX
Logistics, Inc. and American Steamship Company (individually, a
"Subsidiary" and collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except
where the failure to so qualify and be in good standing as a
foreign corporation would not, individually or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry,
any other security interests, claims, liens or encumbrances;
12
13
(iv) the Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company
(including the Redeemable Securities) conforms in all material
respects to the description thereof contained in the Prospectus;
assuming the mailing of the Notice of Redemption in accordance with
Section 1(c) hereof, all the Redeemable Securities will have been
duly called for redemption by the close of business on the date of
execution hereof and the right to convert the Redeemable Securities
into shares of Common Stock will expire at 5:00 P.M., New York City
time, on June 16, 1997; the shares of Common Stock issuable upon
conversion of the Redeemable Securities have been duly and validly
authorized and, when issued and delivered upon conversion of any
Redeemable Securities pursuant to this Agreement, will be fully
paid and nonassessable; the Purchased Securities have been duly and
validly authorized and, when issued and delivered to and paid for
by the Purchaser pursuant to this Agreement, will be fully paid and
nonassessable; the Securities have been duly and validly authorized
for listing, subject to official notice of issuance, on the New
York Stock Exchange, the Chicago Stock Exchange and the London
Stock Exchange; and the certificates for the Securities are in
valid and sufficient form;
(v) the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable;
the outstanding Redeemable Securities have been duly and validly
authorized and issued and are fully paid and nonassessable; and the
holders of outstanding shares of capital stock of the Company are
not entitled to preemptive or other rights to subscribe for the
Securities or the shares of Common Stock issuable upon conversion
of the Redeemable Securities;
(vi) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to be described
in the Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(vii) the Registration Statement has become effective under
the Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and
the Registration Statement and the Prospectus (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need express
no opinion) comply as to form in all material respects with the
applicable
13
14
requirements of the Act and the Exchange Act and the respective
rules thereunder; and no facts have come to the attention of such
counsel which lead such counsel to believe that, as of the
Effective Date, either the Registration Statement or the Prospectus
(other than the financial statements and other financial and
statistical information contained therein as to which such counsel
need express no opinion) contained an untrue statement of a
material act or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading or, as of the date of such opinion, either the
Registration Statement or the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no opinion)
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, in light of the circumstances under which
they were made, not misleading;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required for the redemption or
conversion of the Redeemable Securities or the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the sale of the Securities
as contemplated by this Agreement and such other approvals
(specified in such opinion) as have been obtained;
(x) none of the call of the Redeemable Securities for
redemption, the conversion or redemption thereof, the issue and
sale of the Securities or the consummation of any other of the
transactions herein contemplated or the fulfillment of the terms
hereof will conflict with, result in a breach of, or constitute a
default under (1) any law, (2) the Certificate of Incorporation or
by-laws of the Company or (3) the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory
body, administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries;
(xi) no holders of securities of the Company have rights to
the registration of such securities under the Registration
Statement; and
(xii) the statements (1) in the Prospectus under the caption
"Description of Capital Stock," (2) in the Notice of Redemption
under the captions "Federal Income Tax Considerations," (3) in the
Registration Statement under Item 15 and (4) in "Item 3 - Legal
Proceedings" of the Company's most recent annual report
14
15
on Form 10-K , as supplemented by "Part II - Item 1 - Legal
Proceedings" of the Company's most recent quarterly report on Form
10-Q, both incorporated by reference in the Prospectus, in each
case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, are accurate
and complete in all material respects.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Illinois, the State of New York or the United States to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Purchaser and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto on the
Closing Date.
▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇ will not be required to deliver the opinions set
forth in subparagraphs (ii), (iii), (v), (vi), (ix) and (xi) and clause
(2) of subparagraph (i), clauses (1) and (3) of subparagraph (x) and
clauses (3) and (4) of subparagraph (xii) of this paragraph (b) if ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, Vice President, Corporate Development, General Counsel and
Secretary of the Company, delivers such opinions to you. If ▇▇. ▇▇▇▇▇▇▇▇
elects to deliver the opinions set forth in the immediately preceding
sentence, ▇▇. ▇▇▇▇▇▇▇▇'▇ opinion shall also include the opinion contained
in subparagraphs (vii) and (viii) and clause (1) of subparagraph (i) of
this paragraph (b).
(c) On the date of this Agreement and on the Closing Date, the
Purchaser shall have received from Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Purchaser, such opinion or opinions, dated the date of
this Agreement and the Closing Date, respectively, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related
matters as the Purchaser may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) On the date of this Agreement, on each Effective Date occurring
after the Execution Time and on the Closing Date, the Company shall have
furnished to the Purchaser a certificate of the Company, signed by the
Chairman of the Board, President and Chief Executive Officer and the
principal financial or accounting officer of the Company, dated the date
of delivery, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the date of such
certificate as if made on the date of such certificate and the
Company has complied with all the agreements and
15
16
satisfied all the conditions on its part to be performed or
satisfied at or prior to the date of such certificate;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Company and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(e) At the Execution Time, on each Effective Date occurring after
the Execution Time on which financial information is included or
incorporated in the Registration Statement or the Prospectus and on the
Closing Date, Ernst & Young LLP shall have furnished to the Purchaser a
letter or letters, dated respectively as of the Execution Time, each such
Effective Date and as of the Closing Date, in form and substance
satisfactory to the Purchaser, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and that
they have performed a review of the unaudited financial information for
the fiscal quarter ended March 31, 1997 in accordance with Statement of
Auditing Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial
statements included or incorporated in the Registration Statement
and the Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited interim financial information as
indicated in their reports incorporated in the Registration
Statement and the Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and audit, compensation and retirement
funds review committees of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
and its subsidiaries as to transactions and events subsequent to
date of the most recent
16
17
audited financial statements included or incorporated in the
Registration Statement and the Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form in all material respects with
applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration
Statement and the Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than capsule
information), audited or unaudited, included in or
incorporated in the Registration Statement and the
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter,
in the long-term debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
shareholders' equity of the Company as compared with the
amounts shown on the most recent consolidated balance sheet
included or incorporated in the Registration Statement and
the Prospectus, or for the period from the date of the most
recent financial statements included or incorporated in the
Registration Statement and the Prospectus to such specified
date there were any decreases, as compared with the
corresponding period in the preceding year in gross income,
income before income taxes and equity in net earnings of
affiliated companies or in total or per share amounts of net
income of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Purchaser; or
(3) if the interim financial statements included or
incorporated in the Registration Statement and Prospectus are
supplemented by later income statement information (so-called
"capsule" information), (i) the unaudited amounts of such
capsule information do not agree with the amounts set forth
in the unaudited financial statements for the same periods or
were not determined on a basis substantially consistent with
that of the corresponding amounts in the audited financial
statements included or incorporated in the Registration
Statement and the Prospectus and (ii) if such capsule
information meets the minimum disclosure requirements of APB
Opinion No. 28, paragraph 30, such capsule information is not
in conformity with generally accepted accounting principles;
and
17
18
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus, including
the information set forth on the cover page of the Prospectus and
under the caption "Price Range of Common Stock and Dividend Policy"
in the Prospectus, the information included or incorporated in
Items 1, 6, 7 and 11 of the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus, the
information included in the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Prospectus, and
any such information appearing in any Current Report on Form 8-K
incorporated in the Registration Statement and the Prospectus,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) on the basis of a reading of any unaudited pro forma
financial statements included or incorporated in the Registration
Statement and the Prospectus (the "pro forma financial
statements"); carrying out certain specified procedures; inquiries
of certain officials of the Company and relevant other entities who
have responsibility for financial and accounting matters; and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply in
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of
any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 6
or (ii) any change, or any development involving a prospective change, in
or affecting the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i)
or (ii) above, is, in the judgment of the Purchaser, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
18
19
(g) At the Execution Time, the Company shall have furnished to the
Purchaser a letter substantially in the form of Exhibit A hereto from
each executive officer of the Company addressed to the Purchaser,
relating to sales and certain other dispositions of shares of Common
Stock or certain other securities, and such letter agreements shall be in
full force and effect on the Closing Date.
(h) The Securities shall have been approved for listing on the New
York Stock Exchange and the Chicago Stock Exchange, subject to official
notice of issuance.
(i) The Company shall have furnished to the Purchaser such further
information, certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Purchaser and counsel for the Purchaser, this
Agreement and all obligations of the Purchaser hereunder may be canceled at, or
at any time prior to, the Closing Date by the Purchaser. Notice of such
cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Purchaser, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the due date for
delivery thereof.
7. Reimbursement of Purchaser's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Purchaser set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Purchaser, the Company will reimburse the Purchaser upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Purchaser, the directors, officers, employees
and agents of the Purchaser and each person who controls the Purchaser
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses
19
20
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Purchaser specifically for inclusion
therein and (ii) such indemnity with respect to any Preliminary Prospectus or
to any Prospectus which has been amended or supplemented to reflect an event
subsequent to the effective date of the Registration Statement shall not inure
to the benefit of the Purchaser if the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject thereof from
the Purchaser, but the Purchaser did not send or deliver to such person a copy
of the Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, at or prior to the written
confirmation of the sale of such Securities to such person, in any case where
(A) such delivery is required by the Act, (B) the untrue statement or omission
of a material fact contained in the Preliminary Prospectus or the Prospectus
was corrected in the Prospectus (or the Prospectus as amended or supplemented),
(C) if a copy of such Prospectus (or the Prospectus as amended or supplemented)
had been so sent or given, such delivery would have cured the defect giving
rise to the claim asserted by such person, and (D) the Company had previously
furnished copies of such Prospectus (or the Prospectus as amended or
supplemented) to the Purchaser. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) The Purchaser agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who signs the Registration Statement and
each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Purchaser, but only with reference to written information
relating to the Purchaser furnished to the Company by or on behalf of the
Purchaser specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have. The Company acknowledges
that the last paragraph of the cover page and in the third paragraph under the
heading "Standby Arrangements" in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
Purchaser for inclusion in any Preliminary Prospectus or the Prospectus, and
you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses and
(ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's
20
21
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Purchaser agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and the Purchaser
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Purchaser from the offering of the
Securities; provided, however, that in no case shall the Purchaser be
responsible for any amount in excess of the fees payable by the Company to the
Purchaser pursuant to Section 3 hereof. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Purchaser shall contribute in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the Company and
of the Purchaser in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the sum of (i)
the aggregate Redemption Price for the Redeemable Securities converted by the
Purchaser pursuant to Section 2(a) hereof and (ii) the amount paid by the
Purchaser to the Company pursuant to Section 2(b) hereof (less the total fees
payable by the Company to the Purchaser pursuant to Section 3 hereof), and
benefits received by the Purchaser shall be deemed to be equal to the total
fees payable by the Company to the Purchaser pursuant to Section 3 hereof.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or the
Purchaser. The Company and the Purchaser agree
21
22
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls
the Purchaser within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of the Purchaser shall have the same
rights to contribution as the Purchaser, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Soliciting Conversions. The Purchaser may assist the Company in
soliciting conversion of the Redeemable Securities by the holders thereof but
shall not be entitled to compensation by the Company for any such assistance.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company at any
time prior to the Closing Date, if prior to such time (i) trading in the
Company's Common Stock shall have been suspended by the Commission, the New
York Stock Exchange, the Chicago Stock Exchange or the London Stock Exchange,
trading in the Redeemable Securities shall have been suspended by the
Commission, the New York Stock Exchange or the Chicago Stock Exchange prior to
the Redemption Date or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of
the Purchaser, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Purchaser set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Purchaser or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive the conversion of any Redeemable Securities and the delivery
of and payment for any Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Purchaser, will be mailed,
delivered or telegraphed and confirmed to it at Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention of the Legal Department; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed
22
23
to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Corporate Development, General Counsel and
Secretary.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be executed by any one or more
of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
23
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the Purchaser.
Very truly yours,
GATX Corporation
By:___________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
By:___________________________________
Name:
Title:
25
EXHIBIT A
GATX Corporation
Standby Underwriting of Common Shares
May 16, 1997
Salomon Brothers Inc
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Standby Agreement (the "Standby Agreement") between GATX Corporation, a New
York corporation (the "Company"), and you as the Purchaser named therein,
relating to a call for redemption by the Company of all of its outstanding
$3.875 Cumulative Convertible Preference Stock.
In order to induce you to enter into the Standby Agreement, the
undersigned hereby agrees that, without your prior written consent, the
undersigned will not, prior to the Redemption Date (as defined in the Standby
Agreement) (and, if the aggregate number of the Purchased Securities exceeds
194,873 shares, for an additional period of 90 days following the Redemption
Date), (1) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock (as defined in the Standby Agreement) or
any securities convertible into or exercisable or exchangeable for Common Stock
(whether such shares or any such securities are now owned by the undersigned or
are hereafter acquired), or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. In addition, the undersigned agrees that,
without your prior written consent, the undersigned will not, prior to the
Redemption Date and for a period of 90 days following the Redemption Date, make
any demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
26
If for any reason the Standby Agreement shall be terminated prior to the
Closing Date (as defined in the Standby Agreement), the agreement set forth
above shall likewise be terminated.
Yours very truly,
_________________________
[Name]
2