EXHIBIT 1.1
HARNISCHFEGER INDUSTRIES, INC.
Debt Securities
DISTRIBUTION AGREEMENT
[Date]
[Agents]
Dear Sirs:
Harnischfeger Industries, Inc., a Delaware
corporation (the "Company"), and
(the "Agents") enter into this agreement ("Agreement")
with respect to the issue and sale by the Company of its
debt securities (the "Notes"). The Notes are to be issued
pursuant to an indenture dated as of March 1, 1992, as
supplemented by a supplemental indenture dated as of June
12, 1992 (collectively, the "Indenture"), between the
Company and First Trust of Illinois, National Association
(successor to Continental Bank, National Association), as
trustee (the "Trustee"). As of the date hereof, the
Company has authorized the issuance of up to $250,000,000
aggregate principal amount (or, if issued at an original
issue discount, such greater principal amount as shall
result in an aggregate initial offering price of up to
$250,000,000) of Notes for distribution through or sale to
the Agents pursuant to the terms of this Agreement or for
sale by the Company directly to purchasers on its own
behalf. It is understood, however, that the Company may
from time to time authorize the issuance of additional
Notes and that such Notes may be distributed through or
sold to the Agents pursuant to the terms of this Agreement
or sold by the Company directly to purchasers on its own
behalf, all as though the issuance of such Notes were
authorized as of the date hereof.
This Agreement provides both for the sale of
Notes by the Company directly to purchasers through the
Agents, in which case the Agents will act as agents of the
Company in soliciting Note purchasers, and (as may from
time to time be agreed to by the Company and the Agents) to
the Agents as principals for resale to purchasers.
Additional terms of any sale of Notes to the Agents as
principals will be set out in a Terms Agreement relating to
such sale, all as more fully provided herein. No Agent is
authorized to appoint sub-agents or to engage the services
of any other broker or dealer in connection with the offer
or sale of the Notes.
Subject to the terms and conditions stated herein
and to the reservation by the Company of the right to sell,
solicit and accept offers to purchase Notes directly on its
own behalf, the Company hereby (i) appoints each of the
Agents to act as the agent of the Company for the purpose
of soliciting purchases of the Notes from the Company by
others and (ii) agrees that whenever the Company determines
to sell Notes directly to any of the Agents as principal
for
resale to others, it will enter into a Terms Agreement
(hereafter defined) relating to such sale in accordance
with the provisions of section 2(b) hereof. In soliciting
purchases of the Notes from the Company, each Agent is
acting solely as agent for the Company and not as
principal. Each Agent will use its reasonable best efforts
to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes from the Company
has been solicited by such Agent as agent and accepted by
the Company.
The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (No. 333- ) for the registration
of the Notes under the Securities Act of 1933 (the "1933
Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has
been qualified under the Trust Indenture Act of 1939 (the
"1939 Act"). Such registration statement (and any further
registration statements which may be filed by the Company
for the purpose of registering additional Notes and in
connection with which this Agreement is included as an
exhibit) and the prospectus constituting a part thereof,
and any prospectus supplements (including any pricing
supplements) relating to the Notes, including all documents
incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant
to the Securities Exchange Act of 1934 (the "1934 Act") or
the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and "Prospectus", respectively,
except that if any revised prospectus shall be provided to
the Agents by the Company for use in connection with the
offering of the Notes which is not required to be filed by
the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first
provided to the Agents for such use.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to each of
the Agents as of the date hereof, as of the date of each
acceptance by the Company of an offer for the purchase of
Notes (whether through any of the Agents as agent or by any
of the Agents as principal), as of the date of each
delivery of Notes (whether through any of the Agents as
agent or to any of the Agents as principal) (the date of
each such delivery to an Agent as principal being hereafter
referred to as a "Settlement Date"), and as of the times
referred to in Section 6(a) hereof (each of the times
referenced above being referred to hereafter as a "Repre-
sentation Date"), as follows:
(i) Due Incorporation and Qualification.
The Company has been duly incorporated and is validly
existing as a corporation in good standing under the
laws of the State of Delaware with corporate power
and authority to own, lease and operate its
properties and to conduct its business as described
in the Prospectus; and the Company is duly qualified
as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure to so qualify
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings,
results of operations, assets or liabilities of the
Company and its subsidiaries considered as one
enterprise.
(ii) Subsidiaries. Each subsidiary of the
Company that is a "significant subsidiary" as defined
in Rule 405 of Regulation C of the 1933 Act
Regulations (each a "Significant Subsidiary") has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its
properties and to conduct its business as described
in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of property or the conduct of
business, except where the failure to so qualify
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings,
results of operations, assets or liabilities of the
Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding
capital stock of each Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable (except to the extent provided for in
Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law, as judicially interpreted) and,
except as set forth in the Notes to Exhibit 21 to the
Company's Annual Report on Form 10-K for the year
ended October 31, 1995 ("Exhibit 21"), is owned by
the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim.
(iii) Registration Statement and Prospectus.
At the time the Registration Statement became
effective, the Registration Statement complied, and
as of the applicable Representation Date will comply,
in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations, and the 1939
Act and the rules and regulations of the Commission
promulgated thereunder. The Registration Statement,
at the time it became effective, did not, and at each
time thereafter at which any amendment to the
Registration Statement becomes effective and any
Annual Report on Form 10-K is filed by the Company
with the Commission and as of the applicable
Representation Date, will not, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or neces-
sary to make the statements therein not misleading.
The Prospectus, as of the date hereof does not, and
as of the applicable Representation Date will not,
contain an 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
representations and warranties in this subsection
shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in
reliance upon and in conformity with the information
furnished to the Company in writing by the Agents
expressly for use in the Registration Statement or
Prospectus or to that part of the Registration
Statement which constitutes the Trustee's Statement
of Eligibility under the 1939 Act (Form T-1).
(iv) Incorporated Documents. The documents in-
corporated by reference in the Prospectus, at the
time they were or hereafter are filed with the
Commission, complied and
will comply in all material respects with the
requirements of the 1934 Act and the rules and
regulations thereunder (the "1934 Act Regulations"),
and, when read together and with the other
information in the Prospectus, did not and will not
contain an untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements therein,
in the light of the circumstances under which they
were or are made, not misleading.
(v) Accountants. The accountants who
certified the financial statements included or
incorporated by reference in the Prospectus are
independent accountants as required by the 1933 Act
and the 1933 Act Regulations.
(vi) Financial Statements. The financial
statements and summary financial information 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 at the dates
indicated and the consolidated results of their
operations for the periods specified; and except as
stated therein, said financial statements have been
prepared in conformity with generally accepted
accounting principles applied on a consistent basis
throughout such periods.
(vii) Material Changes or Material
Transactions. Since the respective dates as of which
information is given in the Registration Statement
and Prospectus, except as otherwise stated therein or
contemplated thereby, there has been no material
adverse change in the condition, financial or
otherwise, or in the earnings, results of operations,
assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business.
(viii) No Defaults. Neither the Company
nor any of its subsidiaries is in violation of its
charter or in default in the performance or
observance of any obligation, agreement, covenant or
condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or
any of them or their properties may be bound, which
violation or default would have a materially adverse
effect on the Company and its subsidiaries considered
as one enterprise; and the execution and delivery of
this Agreement, the Indenture and each applicable
Terms Agreement, if any, and the consummation of the
transactions contemplated herein and therein have
been duly authorized by all necessary corporate
action and will not conflict with or constitute a
breach of, or a default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any
such subsidiary is a party or by which it or any of
them may be bound or to which any of the property or
assets of the Company or any such subsidiary is
subject, except for such of the foregoing which would
not have a material adverse effect on the Company and
its subsidiaries considered as one enterprise, nor
will such action result in any violation of the
provisions of the charter or by-laws of the Company
or any law, administrative regulation or
administrative or court order or decree.
(ix) Labor Disputes. Except as may be
disclosed in the Registration Statement, no labor
disputes with the employees of the Company or its
subsidiaries exist which could reasonably be expected
to result in any material adverse change in the
condition, financial or otherwise, or in the
earnings, results of operations, assets, or
liabilities of the Company and its subsidiaries
considered as one enterprise.
(x) Legal Proceedings; Contracts. Except as
may be disclosed in the Registration Statement, there
is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting, the Company
or any of its subsidiaries, which is required to be
disclosed in the Registration Statement, or which
could reasonably be expected to result in any
material adverse change in the condition, financial
or otherwise, or in the earnings, results of
operations, assets or liabilities of the Company and
its subsidiaries considered as one enterprise, or
could reasonably be expected to materially and
adversely affect the properties or assets thereof or
could reasonably be expected to materially and
adversely affect the consummation of this Agreement
or any Terms Agreement; and there are no contracts or
documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
(xi) No Authorization, Approval or Consent
Required. No authorization, approval or consent of
any court or governmental authority or agency is
necessary in connection with the sale of the Notes
hereunder, except such as may be required under the
1933 Act or the 1933 Act Regulations, the 1939 Act or
state securities laws.
(xii) Regulatory Certificates, Authorities and
Permits. The Company and its subsidiaries possess
such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory
agencies or bodies, necessary to conduct the business
now operated by them, except for such certificates,
authorities or permits the failure to possess which
would not have a material adverse effect on the
condition, financial or otherwise, or the earnings,
results of operations, assets or liabilities of the
Company and its subsidiaries considered as one
enterprise, and neither the Company nor any of its
subsidiaries has received any notice of proceedings
relating to the revocation or modification of any
such certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and
adversely affect the condition, financial or
otherwise, or the earnings, results of operations,
assets or liabilities of the Company and its
subsidiaries considered as one enterprise.
(xiii) Authorization and Validity of the
Notes. The Notes have been duly authorized for
issuance and sale pursuant to this Agreement and,
when issued, authenticated and delivered pursuant to
the provisions of this Agreement and the Indenture
against payment of the consideration therefor
specified in the Prospectus or in any Terms
Agreement, the Notes will constitute valid and
legally binding obligations of the Company
enforceable in accordance with their terms, except as
enforcement thereof may be limited
by bankruptcy, insolvency, or other laws relating to
or affecting enforcement of creditors' rights or by
general equity principles; the Notes and the
Indenture will be substantially in the form
heretofore delivered to the Agents and conform in all
material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be
entitled to the benefits provided by the Indenture.
(xiv) The Company has complied with all
provisions of Section 1 of Laws of Florida, Chapter
92-198 Securities-Business with Cuba.
(b) Any certificate signed by any officer of the
Company and delivered to any Agent or to counsel for the
Agents in connection with an offering of Notes shall be
deemed a representation and warranty by the Company to such
Agent as to the matters covered thereby.
SECTION 2. Solicitations as Agents: Purchases as
Principal.
(a) Solicitations As Agents. On the basis of the
representations and warranties herein contained, but
subject to the terms and conditions herein set forth and to
the reservation by the Company of the right to sell,
solicit and accept offers to purchase Notes directly on its
own behalf, each of the Agents agrees, as agent of the
Company, to use its reasonable best efforts to solicit
offers to purchase the Notes upon the terms and conditions
set forth in the Prospectus.
The Company reserves the right, in its sole
discretion, to suspend the solicitation of offers to
purchase Notes commencing at any time for any period of
time or permanently by any or all of the Agents. Upon
receipt of instructions from the Company, each of the
Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the
Company has advised the Agents that such solicitation may
be resumed.
The Company agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage
of the principal amount of each Note sold by the Company as
a result of a solicitation made by such Agent as set forth
in Exhibit A hereto.
As agent, each Agent is authorized to solicit offers
to purchase Notes only in denominations of $100,000 or any
amount in excess thereof which is an integral multiple of
$1,000, at a purchase price equal to 100% of their
principal amount, unless otherwise agreed to by the Company
and the Agent soliciting an offer to purchase such Notes.
Each Agent shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes received
by such Agent as agent. Each Agent shall have the right to
reject, in whole or in part, any offer to purchase Notes
received by such Agent which it does not deem, in its
discretion reasonably exercised, to be reasonable, and any
such rejection shall not be deemed a breach of such Agent's
agreement contained herein. The Company shall have the
sole right to accept offers to purchase Notes and may
reject any such offer in whole or in part. The interest
rate, maturity date and other terms of the Notes shall be
agreed upon by the Company and the Agent soliciting the
offer to purchase such Notes and shall be set forth in a
pricing supplement to the Prospectus to be prepared
following each acceptance by the Company of an offer for
the purchase of Notes.
The Company will promptly notify each Agent of the
principal amounts of any Notes sold directly by it, and of
the settlement dates of such sales.
Notwithstanding anything to the contrary contained
herein, the Company may authorize any other persons,
partnerships or corporations ("Additional Agents") to act
as its agent to solicit offers for the purchase of all or
part of the Notes of the Company upon thirty days' prior
notice to such Agents as are at such time parties to this
Agreement (subject to the provisions of Section 10(b)
hereof), provided, however, that the appointment of an
Additional Agent shall be on terms no more favorable to
such Additional Agent than the terms of this Agreement,
including, specifically, commissions.
(b) Purchases as Principal. Each sale of Notes to
an Agent as principal shall be made in accordance with the
terms of this Agreement and a separate agreement, which may
be an oral agreement, which will provide for the sale of
such Notes to, and the purchase and reoffering thereof by,
such Agent (a "Terms Agreement"). Each Terms Agreement, if
written, shall be substantially in the form of Exhibit B
hereto and may take the form of an exchange of any standard
form of written telecommunication between such Agent and
the Company and, if oral, shall address the items set forth
in Exhibit B. The Agent's commitment to purchase Notes
pursuant to any Terms Agreement shall be deemed to have
been made on the basis of the representations and
warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth.
(c) Administrative Procedures. Administrative
procedures with respect to the sale of Notes shall be as
agreed upon from time to time in writing by the Agents and
the Company (the "Procedures"). The Agents and the Company
agree to perform the respective duties and obligations
specifically provided to be performed by the Agents and the
Company herein and in the Procedures.
SECTION 3. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will
notify the Agents promptly (i) of the effectiveness of any
amendment to the Registration Statement, (ii) of the filing
with the Commission of any supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act which
will be incorporated by reference in the Prospectus, (iii)
of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus,
(iv) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement
to the Prospectus or for additional information with
respect to such amendment or supplement, and (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The
Company will give the Agents notice of its intention to
file or prepare any additional registration statement with
respect to the registration of additional Notes, any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than the Company's
Quarterly Reports on Form 10-Q, the Company's Annual Report
on Form 10-K or a pricing supplement to the Prospectus
relating solely to the specific interest rate, maturity
dates, redemption provisions and other similar terms of
Notes in respect of which the Company has accepted an offer
to purchase), whether by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise, and will
furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed
filing or preparation, as the case may be.
(c) Copies of the Registration Statement and the
Prospectus. The Company has delivered or will deliver to
the Agents four signed and as many conformed copies of the
Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents
may reasonably request. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so
long as the Agents are required to deliver a Prospectus in
connection with the sales or solicitations of offers to
purchase the Notes.
(d) Revisions of Prospectus -- Material Changes.
Except as otherwise provided in subsection (j) of this
Section 3, if, at any time when the Prospectus is required
to be delivered in connection with sales of the Notes, any
event shall occur or condition exist as a result of which
it is necessary, in the written opinion of counsel for the
Agents delivered to the Company or counsel for the Company,
to further amend or supplement the Prospectus in order that
the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in
the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in
the opinion of either such counsel, to amend or supplement
the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933
Act Regulations, upon receipt by the Company of any such
opinion of counsel immediate notice shall be given, and
confirmed in writing, to the Agents to cease the
solicitation of offers to purchase the Notes in their
capacity as agents and to cease sales of any Notes the
Agents may then own as principals, and the Company will
promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may
be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply
with such requirements.
(e) Prospectus Revisions -- Periodic Financial
Information. Except as otherwise provided in subsection
(j) of this Section 3, on or as soon as practicable after
the date on which there shall be released to the general
public interim financial statement information related to
the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the
Company shall furnish such information to the Agents, con-
firmed in writing, and (i) if such information reflects a
material adverse change
in the financial condition or results of operations of the
Company and its subsidiaries considered as one enterprise
in the light of the financial information with respect to
the comparable period of the preceding fiscal year included
or incorporated by reference in the Registration Statement
or the Prospectus or (ii) upon the reasonable request of
any Agent, shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference capsule
financial information with respect thereto and
corresponding information for the comparable period of the
preceding fiscal year, as well as such other information
and explanations as shall be necessary for an understanding
thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(f) Prospectus Revisions -- Audited Financial
Information. Except as otherwise provided in subsection
(j) of this Section 3, on or as soon as practicable after
the date on which there shall be released to the general
public financial information included in or derived from
the audited financial statements of the Company for the
preceding fiscal year, the Company (i) if such information
reflects a material adverse change in the financial
condition or results of operations of the Company and its
subsidiaries considered as one enterprise in the light of
the financial information with respect to the comparable
period of the preceding fiscal year included or
incorporated by reference in the Registration Statement or
the Prospectus or (ii) upon the reasonable request of any
Agent, shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or
otherwise, to include or incorporate by reference such
financial information, as well as such other information
and explanations as shall be necessary for an understanding
of such financial information or as shall be required by
the 1933 Act or the 1933 Act Regulations.
(g) Earnings Statements. The Company will make
generally available to its security holders as soon as
practicable, but not later than 90 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the ▇▇▇▇
▇▇▇) covering each twelve month period beginning, in each
case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in
such Rule 158) of the Registration Statement with respect
to each sale of Notes.
(h) Blue Sky Qualifications. The Company will
endeavor, in cooperation with the Agents, to qualify the
Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United
States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for
the distribution of the Notes; 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. The Company will file such statements and
reports as may be required by the laws of each jurisdiction
in which the Notes have been qualified as provided above.
(i) 1934 Act Filings. The Company, during the
period when the Prospectus is required to be delivered
under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(j) Suspension of Certain Obligations. The Company
shall not be required to comply with the provisions of
subsections (d), (e) or (f) of this Section 3 during any
period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as
agents pursuant to a request from the Company in accordance
with Section 2(a) and (ii) the Agents shall not then hold
any Notes as principals purchased pursuant to a Terms
Agreement, to the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with
the appropriate Agents.
(k) No Sale of Debt Securities Prior to Settlement
Date. Between the date of any Terms Agreement and the
Settlement Date with respect to such Terms Agreement, the
Company will not, without the prior consent of the
respective Agent party to such Terms Agreement, offer or
sell, or enter into any agreement to sell, any debt
securities of the Company (other than the Notes which are
to be sold pursuant to such Terms Agreement and commercial
paper in the ordinary course of business), except as may
otherwise be provided in any such Terms Agreement.
SECTION 4. Payment of Expenses.
The Company will pay all expenses incident to the
performance of its obligations under this Agreement,
including:
(i) The preparation and filing of the
Registration Statement and all amendments thereto and
the Prospectus and any amendments or supplements
thereto;
(ii) The preparation, filing and, if requested
by the Company, printing of this Agreement;
(iii) The preparation, printing, issuance and
delivery of the Notes;
(iv) The fees and disbursements of the
Company's accountants and counsel and of the Trustee;
(v) The reasonable fees and disbursements of
counsel to the Agents incurred from time to time in
connection with the transactions contemplated hereby;
(vi) The qualification of the Notes under the
securities laws in accordance with the provisions of
Section 3(h), including filing fees and the
reasonable fees and disbursements of counsel to the
Agents in connection therewith and in connection with
the preparation of any Blue Sky Survey and any Legal
Investment Survey (such fees of counsel with respect
to the first of such Surveys prepared hereunder not
to exceed $10,000);
(vii) The printing and delivery to the Agents
in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto,
and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents
of the
Prospectus and any amendments or supplements thereto
in connection with solicitations or confirmations of
sales of the Notes;
(viii) The preparation, printing (if
requested by the Company) and delivery to the Agents
of copies of the Indenture;
(ix) Any fees charged by rating agencies for
the rating of the Notes;
(x) The fees and expenses, if any, incurred
with respect to any filing with the National
Association of Securities Dealers, Inc.; and
(xi) Any reasonable advertising and other
out-of-pocket expenses of the Agents incurred with
the approval of the Company.
SECTION 5. Conditions of Obligations.
The obligation of each of the Agents to solicit
offers to purchase the Notes as agent of the Company and
the obligation of any of the Agents to purchase Notes
pursuant to any Terms Agreement will be subject to the
accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of
the Company's officers made in the most recent certificate
furnished to such Agent pursuant to the provisions of
Section 5(b) or Section 6(a) hereof, to the performance and
observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed
and to the following additional conditions precedent:
(a) Legal Opinions. At Closing Time (as defined in
Section 5(d) hereof) and at each Settlement Date with
respect to any applicable Terms Agreement, if called for by
such Terms Agreement, the Agents shall have received the
following legal opinions, dated as of the Closing Time or
such Settlement Date, as applicable, and in form and
substance satisfactory to the Agents:
(1) Opinion of General Counsel. The opinion
of either the General Counsel or the Associate General
Counsel to the Company, 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 the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties
and conduct its business as described in the
Registration Statement.
(iii) To the best of such counsel's knowledge,
the Company is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the failure to
so qualify would have a material adverse effect on
the condition, financial or otherwise, or the
earnings, results of operations, assets or
liabilities of the Company and its subsidiaries
considered as one enterprise.
(iv) Each Significant Subsidiary of the
Company listed in Exhibit 21 has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and
authority to own, lease and operate its properties
and conduct its business as described in the
Registration Statement, and, to the best of such
counsel's knowledge, is duly qualified as a foreign
corporation to transact business and is in good
standing in each jurisdiction in which the failure to
so qualify would have a material adverse effect on
the condition, financial or otherwise, or the
earnings, results of operations, assets or
liabilities of the Company and its subsidiaries
considered as one enterprise; all of the issued and
outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable (except
to the extent provided for in Section 180.0622(2)(b)
of the Wisconsin Business Corporation Law, as
judicially interpreted), and all of such capital
stock, except as set forth in the Notes to Exhibit
21, is owned by the Company, directly or through
subsidiaries, free and clear of any mortgage, pledge,
lien, encumbrance or claim. As used herein, the
terms "subsidiaries" and "subsidiary" do not include
any subsidiary that has no material assets or
liabilities.
(v) This Agreement (and, if the opinion is
being given pursuant to Section 6(b) hereof as a
result of the Company having entered into a Terms
Agreement, the applicable Terms Agreement) has been
duly authorized, executed and delivered by the
Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming the Indenture has been duly authorized,
executed and delivered by the Trustee) constitutes a
valid and binding agreement of the Company,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles.
(vii) The Notes are in due and proper form,
have been duly and validly authorized by all
necessary corporate action and, when executed and
authenticated as specified in the Indenture and
delivered against payment of the consideration
therefor determined in accordance with this Agreement
(and the Terms Agreement, if applicable), will be
valid and binding obligations of the Company,
enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting
enforcement of creditors' rights or by general equity
principles, and each holder of Notes will be entitled
to the benefits of the Indenture.
(viii) The statements in the Prospectus
under the captions "Description of Securities" and
"Description of Notes" insofar as they purport to
summarize certain provisions of documents
specifically referred to therein, are accurate
summaries of such provisions in all material
respects.
(ix) To the best of such counsel's knowledge,
there are no legal or governmental proceedings
pending or threatened which are required to be
disclosed in the Registration Statement, other than
those disclosed therein, and all pending legal or
governmental proceedings to which the Company or any
subsidiary is a party or of which any of their
property is the subject which are not described in
the Registration Statement, including ordinary
routine litigation incidental to the business, are,
considered in the aggregate, not material.
(x) To the best of such counsel's knowledge,
there are no contracts, indentures, mortgages, loan
agreements, notes, deeds of trust, leases or other
instruments required to be described or referred to
in the Registration Statement or to be filed as
exhibits thereto other than those described or
referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions
thereof or references thereto are correct in all
material respects, and no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
deed of trust, lease or other instrument so
described, referred to, filed or incorporated by
reference.
(xi) No consent, approval, authorization,
order or decree of any court or governmental
authority or agency is required in connection with
the sale of the Notes, except such as may be required
under the 1933 Act, the 1939 Act, the 1933 Act
Regulations or state securities laws; and, except for
such of the following which would not have a material
adverse effect on the Company and its subsidiaries
considered as one enterprise, the execution and
delivery of this Agreement (and, if the opinion is
being given pursuant to Section 6(b) hereof on
account of the Company having entered into a Terms
Agreement, the applicable Terms Agreement) and the
Indenture and the consummation of the transactions
contemplated herein and therein will not conflict
with or constitute a breach of, or a default under,
or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such counsel
and to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound
or to which any of the property or assets of the
Company or any of its subsidiaries is subject, or any
law, administrative regulation or administrative or
court order or decree known to such counsel to be
applicable to the Company of any court or
governmental agency, authority or body or any
arbitrator having jurisdiction over the Company; nor
will such action result in any violation of the
provisions of the charter or by-laws of the Company.
(xii) Each document filed pursuant to the 1934
Act and incorporated by reference in the Prospectus
(other than the financial statements and the notes
thereto and the supporting schedules and other ▇▇▇▇▇-
cial and statistical data derived therefrom or
included or incorporated by reference therein, as to
which no opinion need be given) complied when filed
as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(xiii) The information contained under the
caption "Properties" and under the caption "Legal
Proceedings" in the Company's Annual Report on Form
10-K for the year ended October 31, 1995, to the
extent that such disclosed information constitutes
matters of law or legal conclusions, has been
reviewed by such counsel and is correct in all
material respects.
(ixx) The Indenture is qualified under the 1939
Act.
(xx) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(xxi) At the time the Registration Statement
became effective, the Registration Statement (other
than the financial statements and the notes thereto
and the supporting schedules and other financial and
statistical data derived therefrom and included or
incorporated by reference therein, as to which no
opinion need be given) complied as to form in all
material respects with the requirements of the 1933
Act, the 1939 Act and the regulations under each of
those Acts.
(2) Opinion of Counsel to the Agents. The
opinion of , counsel
to the Agents, covering the matters referred to above in
subparagraph (1) under the subheadings (i) and (v) to
(viii), inclusive.
(3) In giving their opinions required by
subparagraph (a)(1) and (a)(2) of this Section, such
counsel shall each additionally state that nothing has come
to their attention that would lead them to believe that the
Registration Statement, at the time it became effective,
and if an amendment to the Registration Statement or an
Annual Report on Form 10-K has been filed by the Company
with the Commission subsequent to the effectiveness of the
Registration Statement (other than the financial statements
and the notes thereto and the supporting schedules and
other financial and statistical data derived therefrom and
included or incorporated by reference therein, as to which
no opinion need be rendered), then at the time such
amendment became effective or at the time of the most
recent such filing, and at the date hereof, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus (other than the financial statements and the
notes thereto and the supporting schedules and other
financial and statistical data derived therefrom and
included or incorporated by reference therein, as to which
no opinion need be rendered), as amended or supplemented at
the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 6(b)
hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
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.
Each of [Company's Counsel] and [Agents' Counsel] in
rendering their respective opinion, may rely as to matters
of fact to the extent they deem proper and specify in such
opinion on certificates of responsible officers of the
Company and its subsidiaries and public officials.
Each of [Company's Counsel] and [Agents' Counsel] may
limit his or their opinion to matters relating to United
States federal law, the law of the States of New York,
Illinois and Wisconsin, and the corporate law of the State
of Delaware. Insofar as the opinion expressed in Section
5(a)(1) is covered by the laws of the State of New York,
[Company's Counsel] may assume that the laws of such
jurisdiction are not materially different than the laws of
the State of Wisconsin and the interpretations thereof.
(b) Officer's Certificate. At Closing Time and at
each Settlement Date with respect to any Terms Agreement,
there shall not have been, since the respective dates as of
which information is given in the Registration Statement
and the Prospectus or since the date of such Terms
Agreement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, results
of operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, except as
contemplated or set forth in the Prospectus; and at Closing
Time and, if called for by the applicable Terms Agreement,
at the Settlement Date with respect thereto the Agents
shall have received a certificate of the Chairman of the
Board, the President, the Chief Financial Officer or any
Vice President of the Company, substantially in the form of
Appendix I hereto and dated as of the Closing Time or such
Settlement Date, to the effect that, to the best knowledge
of such person, after reasonable investigation, (i) there
has been no such material adverse change, (ii) the other
representations and warranties of the Company contained in
Section 1 are true and correct with the same force and
effect as though expressly made at and as of the date of
such certificate, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied pursuant to this Agreement or any
applicable Terms Agreement at or prior to the date of such
certificate, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been initiated or
threatened by the Commission.
(c) Comfort Letter. At the Closing Time and, if
called for by any Terms Agreement, at each Settlement Date
with respect to such Terms Agreement, the Agents shall have
received a letter from Price Waterhouse LLP, dated as of
such date and in form and substance satisfactory to the
Agents, to the effect that:
(i) They are independent accountants with
respect to the Company and its subsidiaries within
the meaning of the 1933 Act and the 1933 Act
Regulations.
(ii) In their opinion, the consolidated ▇▇▇▇▇-
cial statements of the Company and its subsidiaries
audited by them and included or incorporated by
reference in the Registration Statement comply as to
form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933
Act Regulations with respect to registration
statements on Form S-3 and the 1934 Act and the 1934
Act Regulations.
(iii) They have performed specified procedures,
not constituting an audit, including a reading of the
latest available unaudited interim financial data of
the Company and its consolidated subsidiaries, a
reading of the minute books of the Company since the
end of the most recent fiscal year with respect to
which an audit report has been issued, inquiries of
and discussions with certain officials of the Company
responsible for financial and accounting matters with
respect to the unaudited consolidated financial data
included in the Registration Statement and Prospectus
and the latest available unaudited interim financial
data of the Company and its subsidiaries, and such
other inquiries and procedures as may be specified in
such letter, and on the basis of such inquiries and
procedures nothing came to their attention that
caused them to believe that (A) the unaudited
consolidated financial data included or incorporated
by reference in the Registration Statement and
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations or,
unless otherwise disclosed, were not stated on a
basis substantially consistent with that of the
audited financial statements included or incorporated
by reference therein, or (B) at a specified date not
more than five business days prior to the date of
such letter (or, if no consolidated financial data as
of such date is available, at the most recent date
for which consolidated financial data is available),
there was any change that can be determined in the
consolidated capital stock or any increase in
consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net
assets or shareholders equity of the Company and its
subsidiaries, in each case as compared with the
amounts shown on the most recent consolidated balance
sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration
Statement and Prospectus or, during the period from
the date of such balance sheet to the most recent for
which consolidated financial data is available, there
were any decreases, as compared with the
corresponding period in the preceding year, in
consolidated revenues or net income of the Company
and its subsidiaries, except in each such case as set
forth in or contemplated by the Registration
Statement and Prospectus or except for such
exceptions enumerated in such letter as shall have
been agreed to by the Agents and the Company.
(iv) In addition to the audit referred to in
their report included or incorporated by reference in
the Registration Statement and the Prospectus, and
the limited procedures referred to in clause (iii)
above, they have carried out certain other specified
procedures, not constituting an audit, with respect
to certain amounts, percentages and financial
information which are included or incorporated by
reference in the Registration Statement and
Prospectus and which are specified by the Agents and
agreed to by the independent accountants which are of
a nature customarily the subject of accountants'
comfort letters, and have found such amounts,
percentages and financial information to be in
agreement with the relevant accounting, financial and
other records of the Company and its subsidiaries
identified in such letter.
(d) Other Documents. At Closing Time and on each
Settlement Date with respect to any applicable Terms
Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such
counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory
in form and substance to the Agents and to counsel to the
Agents.
If any condition specified in this Section 5 shall
not have been fulfilled when and as required to be
fulfilled, this Agreement and any Terms Agreement may be
terminated by the Agents by notice to the Company at any
time and any such termination shall be without liability of
any party to any other party, except that the covenant set
forth in Section 3(g) hereof, the provisions of Section 4
hereof, the indemnity and contribution agreements set forth
in Sections 7 and 8 hereof, and the provisions of Sections
9 and 13 hereof shall remain in effect.
The documents required to be delivered by this Sec-
tion 5 hereof shall be delivered at the office of [Agent's
Counsel], on the date hereof, or at such other time and
place as the Agents and the Company may agree upon in
writing (the "Closing Time").
SECTION 6. Subsequent Documentation Requirements of
the Company.
The Company covenants and agrees that:
(a) Subsequent Delivery of Certificates. Each time
that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by an amendment or
supplement providing solely for a change in the interest
rates of Notes or similar changes), or (unless the Agents
shall have suspended solicitation of purchases of Notes in
their capacity as agents pursuant to a request from the
Company in accordance with Section 2(a)) there is filed
with the Commission any document incorporated by reference
into the Prospectus (other than any Current Report on Form
8-K relating exclusively to the issuance of debt securities
under the Registration Statement, unless the Agents shall
otherwise specify) or (unless waived by the relevant Agent
with respect to a particular Terms Agreement) the Company
sells Notes to an Agent pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished to such
Agent forthwith a certificate in form satisfactory to such
Agent to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were
last furnished to the Agents are true and correct at the
time of such amendment, supplement, filing or sale, as the
case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate,
a certificate of the same tenor as the certificate referred
to in said Section 5(b), modified as necessary to relate to
the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such
certificate.
(b) Subsequent Delivery of Legal Opinions. Each
time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in
the interest rates of the Notes or similar changes or
solely for the inclusion of additional financial
information), or (unless the Agents shall have suspended
solicitation of purchases of Notes in their capacity as
agents pursuant to a request from the Company in accordance
with Section 2(a)) there is filed with the Commission any
document incorporated by reference into the Prospectus, or
(unless waived by the relevant Agent with respect to a
particular Terms Agreement) the Company sells Notes to an
Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to the Agents
and to counsel to the Agents an opinion, dated the date of
delivery of such opinion and in form satisfactory to the
Agents, of either the General Counsel or the Senior
Corporate Counsel to the Company covering the matters
referred to above in Section 5(a)(1) under the subheadings
(i), (v) (with respect to any applicable Terms Agreement),
(ix), (xi) (with respect to any applicable Terms Agreement)
and (xii) and in Section 5(a)(3), but modified in each
case, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time
of delivery of such opinion.
(c) Subsequent Delivery of Comfort Letters. Each
time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional
financial information or (unless the Agents shall have
suspended solicitation of purchases of Notes in their
capacity as agents pursuant to a request from the Company
in accordance with Section 2(a)) there is filed with the
Commission any document incorporated by reference into the
Prospectus which contains additional financial information
or (unless waived by the relevant Agent with respect to a
particular Terms Agreement) the Company sells Notes to an
Agent pursuant to a Terms Agreement, the Company shall
cause Price Waterhouse LLP forthwith to furnish the Agents
a letter, dated the date of filing of such amendment,
supplement or document with the Commission, or the date of
such sale, as the case may be, in form satisfactory to the
Agents, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof
but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such
letter, and of the same general tenor as the portions of
the letter referred to in clauses (iii) and (iv) of said
Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other
information derived from the accounting records of the
Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a
fiscal quarter, Price Waterhouse LLP may limit the scope of
such letter to the unaudited financial data included in
such amendment or supplement unless any other information
included therein of an accounting, financial or statistical
nature is of such a nature that, in the reasonable judgment
of the Agents and with the agreement of Price Waterhouse
LLP, such letter should cover such other information.
SECTION 7. Indemnification.
(a) Indemnification of the Agents. The Company
agrees to indemnify and hold harmless the Agents and each
person, if any, who controls the Agents within the meaning
of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement (or any amendment thereto), or
the omission or
alleged omission therefrom of a material fact
required to be stated therein or necessary to make
the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus (or
any amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such
alleged untrue statement or omission, if such
settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever
(including the fees and disbursements of counsel
chosen by the Agents), as incurred, reasonably
incurred in investigating, preparing or defending
against any litigation, or investigation or
proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished
to the Company by the Agents expressly for use in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), or
made in reliance upon the Trustee's Statement of
Eligibility under the 1939 Act filed as an exhibit to the
Registration Statement.
(b) Indemnification of Company. The Agents agree,
severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers
who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section
15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred,
but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information
furnished to the Company by the Agents expressly for use in
the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give
prompt notice to each indemnifying party of any action
commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of
this indemnity agreement. An
indemnifying party may participate at its own expense in
the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying
parties receiving such notice, may assume the defense of
such action with counsel chosen by it and reasonably
acceptable to the indemnified parties to such action,
unless such indemnified parties reasonably object to such
assumption on the ground that there may be legal defenses
available to them which are different from or in addition
to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the
indemnifying parties shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event
shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all
indemnified parties in connection with any one action or
separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
SECTION 8. Contribution.
In order to provide for just and equitable contri-
bution in circumstances in which the indemnity agreement
provided for in Section 7 is for any reason held to be
unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and
the Agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the
Company and the Agents, as incurred, in such proportions
that the Agents are responsible for that portion
represented by the percentage that the total commissions
and underwriting discounts received by the Agents to the
date of such liability bears to the total sales price
received by the Company from the sale of Notes to the date
of such liability, and the Company is responsible for the
balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each
person, if any, who controls an Agent within the meaning of
Section 15 of the 1933 Act shall have the same rights to
contribution as such Agent, and each director of the
Company, each officer of the Company who signed the Regi-
stration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the
Company.
SECTION 9. Representations, Warranties and
Agreements to Survive Delivery.
All representations, warranties and agreements con-
tained in this Agreement or any Terms Agreement, or
contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made
by or on behalf of any of the Agents or any controlling
person of any Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the
Notes.
SECTION 10. Termination.
(a) Termination of this Agreement. This Agreement
may be terminated for any reason, at any time by either the
Company or the Agents upon the giving of 30 days' written
notice of such termination to the other party hereto.
(b) Termination of a Terms Agreement. An Agent may
terminate any Terms Agreement, immediately upon notice to
the Company, at any time prior to the Settlement Date
relating thereto (i) if there has been, since the date of
such Terms Agreement or since the respective dates as of
which information is given in the Registration Statement
(as amended and supplemented to the date of the Terms
Agreement), any material adverse change in the condition,
financial or otherwise, or in the earnings, results of
operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business or, (ii) if
there shall have occurred any material adverse change in
the financial markets in the United States or any outbreak
or escalation of hostilities or other national or
international calamity or crisis, in all cases the effect
of which shall be such as to make it, in the reasonable
judgment of an Agent, impracticable to market the Notes or
enforce contracts for the sale of the Notes, or (iii) if
trading in any securities of the Company shall have been
suspended by the Commission or a national securities
exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for
securities shall have been required, by either of said
exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium shall
have been declared by either Federal or New York
authorities, or (iv) if the rating assigned by any
nationally recognized securities rating agency to any
senior debt securities of the Company or any subsidiary
thereof as of the date of the applicable Terms Agreement
shall have been lowered since that date or if any such
rating agency shall have publicly announced that it has
placed any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading, or
(v) if there shall have come to an Agent's attention any
facts that would cause an Agent to believe that the
Prospectus, at the time it was required to be delivered to
such Agent as principal, contained an untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not
misleading; provided that in such case the Company may
immediately authorize Additional Agents to solicit offers
for the purchase of Notes in accordance with the provisions
of Section 2(a) hereof notwithstanding the requirement to
give the Agents prior notice of such authorization.
(c) General. In the event of any such termination,
neither party will have any liability to the other party
hereto, except that (i) the Agents shall be entitled to any
commissions earned in accordance with the third paragraph
of Section 2(a) hereof, (ii) if at the time of termination
(a) an Agent shall own any Notes purchased pursuant to a
Terms Agreement with the intention of reselling them or (b)
an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or
his agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 3 and 6
hereof shall remain in effect until such Notes are so re-
sold or delivered, as the case may be, and (iii) the
covenant set forth in Section 3(g) hereof, the provisions
of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the
provisions of Sections 9 and 13 hereof shall remain in
effect.
SECTION 11. Notices.
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 Agents shall be directed
to . Notices
to the Company shall be directed to it at Harnischfeger
Industries, Inc., ▇▇▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of Executive Vice President for Finance
and Administration.
SECTION 12. Parties.
This Agreement and any Terms Agreement shall inure to
the benefit of and be binding upon the Agents (or in the
case of any Terms Agreement, the Agent which is a party
thereto) and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any
Terms Agreement is intended or shall be construed to give
any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections
7 and 8 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in
respect of this Agreement or any Terms Agreement or any
provision herein or therein contained. This Agreement and
any Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and
their respective successors and said controlling persons
and officers and directors and their heirs and legal
representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Notes shall be deemed
to be a successor by reason merely of such purchase.
SECTION 13. Governing Law.
This Agreement and any Terms Agreement and the rights
and obligations of the parties created hereby and thereby
shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made
and to be performed in such State.
If the foregoing is in accordance with your under-
standing of our agreement, please sign and return to the
Company a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its
terms.
Very truly yours,
HARNISCHFEGER INDUSTRIES, INC.
By:
-----------------------------
Title:
CONFIRMED AND ACCEPTED, AS OF
THE DATE FIRST ABOVE WRITTEN:
[AGENTS]
BY:
By:
-------------------------
Name:
Title:
APPENDIX I
FORM OF OFFICER'S CERTIFICATE
-----------------------------
HARNISCHFEGER INDUSTRIES, INC.
I, , of
Harnischfeger Industries, Inc., a Delaware corporation (the
"Company"), pursuant to Section 5(b) of the Distribution
Agreement dated , 199 (the "Distribution
Agreement") between the Company and [Agents], hereby
certify that, to the best of my knowledge, after reasonable
investigation:
1. Since , 199 , there has been no
material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries considered
as one enterprise, or in the earnings, results of
operations, assets or liabilities of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, except as
contemplated or set forth in the Prospectus or the
Registration Statement (as defined in the Distribution
Agreement);
2. The representations and warranties of the
Company contained in Section 1 of the Distribution
Agreement are true and correct with the same force and
effect as though expressly made at and as of the date
hereof;
3. The Company has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied pursuant to the Distribution
Agreement and the Terms Agreement at or prior to the date
hereof; and
4. No stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or
threatened by the Securities and Exchange Commission.
IN WITNESS WHEREOF, I have hereunto signed my
name and affixed the seal of the Company.
Dated: , 199
--------------- -
-----------------------------
[Title]
EXHIBIT A
Maturity Ranges Commission
--------------- ----------
From 9 months but less than 1 year %
----
From 1 year but less than 18 months
----
From 18 months but less than 2 years
----
From 2 years but less than 3 years
----
From 3 years but less than 4 years
----
From 4 years but less than 5 years
----
From 5 years but less than 6 years
----
From 6 years but less than 7 years
----
From 7 years but less than 8 years
----
From 8 years but less than 9 years
----
From 9 years but less than 10 years
----
From 10 years but less than 15 years
----
From 15 years but less than 20 years
----
From 20 years to 30 years
----
EXHIBIT B
$
---------------
HARNISCHFEGER INDUSTRIES, INC.
Debt Securities
TERMS AGREEMENT
[DATE]
Harnischfeger Industries, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Distribution Agreement dated , 199
---------- -
Ladies and Gentlemen:
Section 1. Agreement to Purchase; Terms of the Notes.
Subject in all respects to the terms and conditions of
the Distribution Agreement (the "Agreement"), dated
, 199 among [Agents] and you (the "Company"), the
undersigned (collectively, the "Underwriters") agree to be
bound by and to perform all provisions of this Terms
Agreement and further agree to purchase, severally and not
jointly, the following securities (the "Debentures") of the
Company having the following terms and in the amounts
indicated opposite their respective names under the caption
"Underwriting Commitment":
The terms of such securities shall be as follows:
Title: % Debentures due ,
___ -------------- ----
Specified Currency: United States Dollars
Aggregate Principal Amount: $
------------
Interest Rate: %
-------
Date of Maturity: , 19
----------------- --
Interest Payment Dates: and
-----------
----------- of each year,
commencing on , 199
------------------- -
Regular Record Dates: and
-----------
----------- of each year
Redemption Provisions:
Sinking Fund Provisions:
Price to Public: % of the principal amount of
the purchased Debentures, plus accrued interest
from , 199 to the date of delivery
---------- -
Underwriting Discount: %
-----
Settlement Date: , 199
--------------- -
Place for Delivery of Documents, Debentures and Payment Therefor:
Documents: [Agents' Counsel]
Debentures:
Payment: [Borrower's Bank]
Method of Payment:FED Funds in immediately available funds
Underwriting Commitment:
Underwriter Amount
$
------------
Total $
Exceptions, if any, to Section 3(k) of the Agreement:
Section 2. Default by an Underwriter.
(a) If any Underwriter shall default in its obligation
to purchase the Debentures which it has agreed to purchase
hereunder, we may in our discretion arrange for ourselves
or another party or other parties to purchase such
Debentures on the terms contained herein. If within
thirty-six hours after such default by any Underwriter we
do not arrange for the purchase of such Debentures, then
the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or
other parties reasonably satisfactory to us to purchase
such Debentures on such terms. In the event that, within
the respective prescribed period, we notify the Company
that we have so arranged for the purchase of such
Debentures, or the Company notifies us that it has so
arranged for the purchase of such Debentures, we or the
Company shall have the right to postpone the Settlement
Date for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement
or the Prospectus which in the mutual opinion of the
Company and the Underwriters may thereby be made necessary.
The term "Underwriter" as used in this Terms Agreement
shall include any person substituted under this provision
with like effect as if such person had originally been a
party to this Terms Agreement with respect to such
Debentures.
(b) If, after giving effect to any arrangements for the
purchase of the Debentures of a defaulting Underwriter or
Underwriters by us and the Company as provided in section
2(a) hereof, the aggregate principal amount of such
Debentures which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all of the
Debentures, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the
principal amount of Debentures which such Underwriter
agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Debentures which
such Underwriter agreed to purchase hereunder) of the
Debentures of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Debentures of a defaulting Underwriter or
Underwriters by us and the Company as provided in Section
2(a) hereof, the aggregate principal amount of Debentures
which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of all the Debentures, or if the
Company shall not exercise the right described in Section
2(b) hereof to require non-defaulting Underwriters to
purchase Debentures of a defaulting Underwriter or
Underwriters, then this Terms Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the
indemnity and contribution agreements in Sections 7 and 8
of the Agreement, and Sections 4, 9 and 13 of the
Agreement, but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
Section 3. Additional Agreements.
(a) All references to Agents and Notes in the
Agreement shall refer to the Underwriters and the
Debentures, respectively, hereunder. The Company
understands and agrees that the Underwriters are "agents
purchasing as principals" within the meaning of the
Agreement and intend to sell the Debentures in a public
offering as described in the Prospectus Supplement of the
Company dated , 199 . The Company further
understands and agrees that the Underwriters shall have no
obligations to solicit offers to purchase any securities
pursuant to Section 2(a) of the Agreement or otherwise,
other than pursuant to this Terms Agreement.
(b) The references to the Company's Annual Report on
Form 10-K for the year ended October 31, 1995 shall be
changed to references to the Company's Annual Report on
Form 10-K for the year ended October 31, 199 in Sections
1(a)(ii) and 5(a)(1)(xiii).
(c) At the Settlement Date under the Terms Agreement,
and as additional conditions to the obligations of the
Underwriters to take delivery of and pay for the
Debentures, the Underwriters shall receive:
(i) the certificate referred to in Section 5(b) ;
and
(ii) the legal opinions called for by Sections
5(a)(1) and (2) of the Agreement; it being understood
that in rendering their opinion, [Agents' Counsel] may
rely on the opinion of [Company's Counsel] as to matters
of Wisconsin law.
(d) The accountants' letter referred to in Section 5(c)
of the Agreement shall be given in the form attached hereto
as Schedule I at the time of execution of this Terms
Agreement, and a "bring down" comfort letter satisfactory
to the Underwriters shall be delivered at, and as a
condition to, the closing on the Settlement Date.
(e) The references in the Agreement to "Administrative
Procedures" or "Procedures" shall have no effect on the
obligations of the Underwriters with respect to the offer
and sale of the Debentures.
(f) Anything in the Agreement to the contrary
notwithstanding, the provisions of Section 6(a), (b) or (c)
of the Agreement shall not apply to the amending or
supplementing of the Registration Statement or Prospectus
by the filing of documents incorporated by reference
therein, but the Company shall not amend or supplement,
during the time that the delivery of a Prospectus is
required, the Registration Statement or Prospectus, by the
filing of documents incorporated by reference therein or
otherwise, without the consent of the Underwriters (which
shall not be unreasonably withheld).
(g) Anything in Section 4 of the Agreement to the
contrary notwithstanding, the Underwriters shall pay the
fees and expenses of counsel to the Underwriters.
(h) The parties hereby agree that no indemnifying party
(as such term is used in Section 7 of the Agreement) shall,
without the prior written consent of the indemnified party
(as such term is used in Section 7 of the Agreement),
effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or
could have been a party and
indemnity could have been sought under the Agreement by
such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all
liability or claims that are the subject of such
proceeding.
Section 4. Counterparts. This Terms Agreement may be
executed in one or more counterparts, all of which shall be
considered one and the same agreement and each of which
shall be deemed an original
[UNDERWRITERS]
BY:
By:
-------------------------
Name:
Title:
Accepted:
HARNISCHFEGER INDUSTRIES, INC.
By:
---------------------------
Name:
Title: