[Draft--5/29/98]
EXHIBIT 1.1
Navistar International Corporation
15,894,103 Shares /a/
Common Stock
($0.10 par value)
U.S. Underwriting Agreement
New York, New York
[ ], 1998
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As U.S. Representatives of the several U.S. Underwriters,
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Navistar International Transportation Corp. Retiree Supplemental
Benefit Trust (the "Selling Stockholder") proposes to sell to the several
underwriters named in Schedule I hereto (the "U.S. Underwriters"), for whom you
(the "U.S. Representatives") are acting as representatives, 15,894,103 shares of
Class B Common Stock, $0.10 par value (the "Class B Stock"), of Navistar
International Corporation (the "Company"), a Delaware corporation, which as
described herein will convert into 15,894,103 shares of Common Stock, $0.10 par
value per share ("Common Stock"), of the Company (such shares of Common Stock
being hereinafter called the "U.S. Underwritten Securities"). The Company also
proposes to grant to the U.S. Underwriters an option to purchase up to 1,300,000
additional shares of Common Stock to cover over-allotments (the "U.S. Option
Securities"; the U.S. Option Securities, together with the U.S. Underwritten
Securities, being hereinafter called the "U.S. Securities"). To the extent there
are no additional U.S. Underwriters listed on Schedule I other than you, the
term U.S. Representatives as used herein shall mean you, as U.S. Underwriters,
and the terms U.S. Representatives and U.S. Underwriters shall mean either the
singular or plural as the context requires. The use of the neuter in this
Agreement shall include the feminine and masculine wherever appropriate. Any
reference herein to the Registration Statement, a Preliminary Prospectus or the
Prospectuses 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
--------------------
/a/ Plus an option to purchase from the Company up to 1,3000 additional U.S.
Securities to cover over-allotments.
2
or the issue date of such Preliminary Prospectus or the Prospectuses, 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 Prospectuses 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
Prospectuses, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
It is understood that the Company and the Selling Stockholder are
concurrently entering into an International Underwriting Agreement dated the
date hereof (the "International Underwriting Agreement") providing for the sale
by the Selling Stockholder of an aggregate of 4,000,000 shares of Common Stock
(such shares to be sold pursuant to the International Underwriting Agreement
being hereinafter called the "International Securities", and together with the
U.S. Securities, the "Securities"), outside the United States and Canada through
arrangements with certain underwriters outside the United States and Canada (the
"Managers" and, together with the U.S. Underwriters, the "Underwriters"), for
whom ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Credit Suisse First Boston (Europe) Limited and ▇.▇.
▇▇▇▇▇▇ Securities Ltd. are acting as lead managers (the "Lead Managers" and,
together with the U.S. Representatives, the "Representatives").
It is further understood and agreed that the U.S. Underwriters and the
Managers have entered into an Agreement Between U.S. Underwriters and Managers
dated the date hereof (the "Agreement Between U.S. Underwriters and Managers"),
pursuant to which, among other things, the Managers may purchase from the U.S.
Underwriters a portion of the Securities to be sold pursuant to the U.S.
Underwriting Agreement and the U.S. Underwriters may purchase from the Managers
a portion of the Securities to be sold pursuant to the International
Underwriting Agreement. The Company and the Selling Stockholder understand that
any such purchases and sales between the Managers and the U.S. Underwriters
shall be governed by the Agreement Between U.S. Underwriters and Managers and
shall not be governed by the terms of this Agreement or the U.S. Underwriting
Agreement.
In this Agreement, unless otherwise specified, all references to
"dollars" or "$" are to the currency of the United States.
1. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with, each
U.S. Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-52375) on Form S-3, including related preliminary
prospectuses, for registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission one
of the following: either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration statement
(including the forms of final prospectus) or (2) after the Effective Date
of such registration statement, a final prospectus in accordance with Rules
430A and 424(b). In the case of clause (2), the Company has included in
3
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 such registration statement and the
Prospectuses. As filed, such amendment and forms of final prospectus, or
such final prospectuses, shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
U.S. Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
It is understood that two forms of prospectus are to be used in
connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons which for purposes of
distribution to Canadian Persons shall have a Canadian "wrap-around" (the
"Canadian Offering Memorandum"), and one form of prospectus relating to the
International Securities, which are to be offered and sold to persons other
than United States and Canadian Persons. The two forms of prospectus are
identical except for the outside front cover page and the outside back
cover page. Such form of prospectus relating to the U.S. Securities as
first filed with the Commission pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, such form of
final prospectus relating to the U.S. Securities included in the
Registration Statement at the Effective Date, is hereinafter called the
"U.S. Prospectus"; such form of prospectus relating to the International
Securities as first filed with the Commission pursuant to Rule 424(b) after
the Execution Time or, if no filing pursuant to Rule 424(b) is required,
such form of final prospectus relating to the International Securities
included in the Registration Statement at the Effective Date, is
hereinafter called the "International Prospectus"; and the U.S. Prospectus
and the International Prospectus are hereinafter collectively called the
"Prospectuses". Insofar as they relate to offers or sales of Securities in
Canada, all references herein to the U.S. Preliminary Prospectus and the
U.S. Prospectus shall include the Canadian Offering Memorandum.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectuses are first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which U.S. Option Securities are purchased, if such date is not the Closing
Date (a "settlement date"), the Prospectuses (and any supplements thereto)
will, comply in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, 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 Prospectuses, if not filed pursuant to Rule 424(b), will not, and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, the Prospectuses (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
4
in or omitted from the Registration Statement or the Prospectuses (or any
supplement thereto) in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any U.S.
Underwriter through the U.S. Representatives specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement thereto)
or by or on behalf of the Selling Stockholder specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement thereto).
(c) None of the sale of the Securities, the consummation of any other
of the transactions contemplated herein or in the International
Underwriting Agreement (including the conversion of the Class B Stock to
Common Stock) or the fulfillment of the terms hereof of thereof will
conflict with, result in a breach or violation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, (i) the charter or by-laws of the Company or
any of its subsidiaries, (ii) the obligations of the Company or any of its
subsidiaries pursuant to the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of its subsidiaries is a party or bound or to which its or their property
is subject, or (iii) the obligations of the Company or any of its
subsidiaries pursuant to any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its subsidiaries or any of its or their properties, which conflict,
breach, violation or imposition would, in the case of clauses (ii) and
(iii) above, either individually or in the aggregate with all other
conflicts, breaches and violations referred to in this paragraph (c) (if
any), have an adverse effect on the consummation of the transactions
contemplated herein or in the International Underwriting Agreement or have
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectuses (exclusive of any supplement thereto).
(d) The restrictions relating to the transferability of the Class B
Stock imposed by Section III.E. of Article Fourth of the Restated
Certificate of Incorporation of the Company have been duly waived by the
Board of Directors of the Company.
(e) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the International Underwriting Agreement or the consummation
of any of the transactions contemplated hereby or thereby or (ii) could
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectuses (exclusive of any supplement
thereto).
5
(f) Except as disclosed in the Registration Statement and the
Prospectuses (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectuses (or any amendment or supplement thereto),
neither the Company nor any of its subsidiaries has incurred any liability
or obligation, direct or contingent, or entered into any transaction, not
in the ordinary course of business, that is material to the Company and its
subsidiaries taken as a whole, and there has not been any change in the
capital stock, or material increase in the short-term debt or long-term
debt, of the Company or any of its subsidiaries, or any material adverse
change, or any development having or which may reasonably be expected to
have a material adverse change, in the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Prospectuses (exclusive of any supplement thereto).
Any certificate signed by any officer of the Company and delivered to
the U.S. Representatives or counsel for the U.S. Underwriters in connection with
the offering of the Securities shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each U.S. Underwriter.
(ii) The Selling Stockholder represents and warrants to, and agrees
with, each U.S. Underwriter that:
(a) The Selling Stockholder is the lawful owner of the Class B Stock
and that, upon the conversion of the Class B Stock and the sale and
delivery of, and payment for, the Securities, as provided herein and in the
International Underwriting Agreement, the Selling Stockholder will convey
to the Underwriters good and marketable title to the Class B Stock and,
assuming the conversion of the Class B Stock into the Common Stock as
provided in this Agreement and the International Underwriting Agreement,
the Securities, free and clear of all liens, encumbrances, equities and
claims whatsoever.
(b) The Selling Stockholder has not taken, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(c) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Selling
Stockholder of the transactions contemplated herein or in the International
Underwriting Agreement, except such as may have been obtained under the Act
and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals as have been obtained.
(d) Assuming that the Board of Directors of the Company has approved
the transactions contemplated by this Agreement, none of the sale of the
Class B Stock and, assuming the conversion of the Class B Stock into the
Common Stock as provided in this Agreement and the International
Underwriting Agreement, the
6
Securities being sold by the Selling Stockholder, the consummation of any
other of the transactions herein contemplated by the Selling Stockholder or
the fulfillment of the terms hereof or thereof by the Selling Stockholder
will conflict with, result in a breach or violation of, or constitute a
default under any law or the trust agreement of the Selling Stockholder
(the "Trust Agreement") or the terms of any indenture or other agreement or
instrument to which the Selling Stockholder is a party or by which it is
bound, or any judgment, order or decree applicable to the Selling
Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder.
(e) In respect of any statements in or omissions from the
Registration Statement or the Prospectuses or any supplements thereto made
in reliance upon and in conformity with information furnished in writing to
the Company by the Selling Stockholder specifically for use in connection
with the preparation thereof, the Selling Stockholder hereby makes the same
representations and warranties to each U.S. Underwriter as the Company
makes to such U.S. Underwriter under paragraph (i)(b) of this Section.
Any certificate signed by the Selling Stockholder and delivered to the
U.S. Representatives or counsel for the U.S. Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Selling Stockholder, as to matters covered thereby, to each U.S. Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Selling
Stockholder agrees to sell to each U.S. Underwriter, and each U.S. Underwriter
agrees severally and not jointly to purchase from the Selling Stockholder, at a
purchase price of $[___] per share, the Class B Stock which, when converted as
described herein, will equal the amount of the U.S. Underwritten Securities set
forth opposite such U.S. Underwriter's name in Schedule I hereto (other than the
Repurchased Securities (as defined), which are subject to paragraph (c) of this
Section 2) [and the Company agrees to pay to each U.S. Underwriter a[n
additional] discount of $[___] for each share purchased by such U.S.
Underwriter]. It is understood that the U.S. Underwriters are not obligated to
purchase any U.S. Underwritten Securities unless all the International
Securities are purchased by the Managers.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several U.S. Underwriters to purchase, severally and not
jointly, up to 1,300,000 U.S. Option Securities at a purchase price of
$[___] per share (such price being the price at which the U.S. Underwritten
Securities are offered to the public). Said option may be exercised only to
cover over-allotments in the sale of the U.S. Underwritten Securities by
the U.S. Underwriters. Said option may be exercised in whole or in part at
any time (but not more than once) on or before the 30th day after the date
of the Prospectuses upon written or telegraphic notice by the U.S.
Representatives to the Company setting forth the number of shares of the
U.S. Option Securities as to which the several U.S. Underwriters are
exercising the option and the settlement date. Delivery of certificates for
the shares of U.S. Option Securities by the Company, and payment therefor
to the Company, shall be made as provided in Section 3 hereof. The number
of U.S. Option Securities to be purchased by each U.S. Underwriter shall be
the same percentage of the total
7
number of shares of the U.S. Option Securities to be purchased by the
several U.S. Underwriters as such U.S. Underwriter is purchasing of the
U.S. Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
(c) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholder
agrees to sell to each U.S. Underwriter, and each U.S. Underwriter agrees
severally and not jointly to purchase from the Selling Stockholder, at a
purchase price equal to $[_____] per share (such price being the price at
which the U.S. Underwritten Securities are offered to the public),
2,000,000 U.S. Underwritten Securities (the "Repurchased Securities"). The
Company agrees that it shall cause Navistar International Transportation
Corp. ("NITC") to purchase from the U.S. Underwriters the Repurchased
Securities at a purchase price equal to $[_____] per share (such price
being the price at which the U.S. Underwritten Securities are offered to
the public) pursuant to the agreement dated [_______], 1998, among the
Company, NITC and the Selling Stockholder. The number of Repurchased
Securities to be purchased by each U.S. Underwriter shall be the same
percentage of the total number of shares of the Repurchased Securities to
be purchased by the several U.S. Underwriters as such U.S. Underwriter is
purchasing of the U.S. Underwritten Securities, subject to such adjustments
as you in your absolute discretion shall make to eliminate any fractional
shares. The Selling Stockholder agrees to pay to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., in its
individual capacity and not as a U.S. Representative, a fee equal to $[___]
(representing one percent of the aggregate purchase price of the
Repurchased Securities).
3. Delivery and Payment. Delivery of and payment for the U.S.
Underwritten Securities and the U.S. Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 10:00 AM, New York City
time, on [____________], 1998, or at such time on such later date not more than
three Business Days after the foregoing date as the U.S. Representatives and the
Lead Managers shall designate, which date and time may be postponed by agreement
among the U.S. Representatives, the Lead Managers, the Company and the Selling
Stockholder or as provided in Section 9 hereof (such date and time of delivery
and payment for the U.S. Securities being herein called the "Closing Date").
Delivery of the U.S. Underwritten Securities shall be made to the U.S.
Representatives for the respective accounts of the several U.S. Underwriters
against payment by the several U.S. Underwriters through the U.S.
Representatives of the purchase price of the U.S. Underwritten Securities to or
upon the order of the Selling Stockholder by wire transfer payable in same-day
funds to the account specified by the Selling Stockholder [and against payment
by the Company of the discount of $[___] for each share purchased by the U.S.
Underwriters, other than the Repurchased Securities, to or upon the order of the
several U.S. Underwriters through the U.S. Representatives by wire transfer
payable in same-day funds to the account specified by the U.S. Underwriters
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney]. Delivery of the U.S. Underwritten Securities and
the U.S. Option Securities shall be made through the facilities of The
Depository Trust Company unless the U.S. Representatives shall otherwise
instruct. Delivery of the Repurchased Securities shall be made by the U.S.
Underwriters to NITC against payment by NITC of the purchase price of the
Repurchased Securities to or upon the order of the several U.S. Underwriters
through the U.S. Representatives by wire transfer payable in
8
same-day funds to the account specified by the U.S. Underwriters through ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇.
The Company will pay all applicable state transfer taxes, if any,
involved in the transfer to the several U.S. Underwriters of the U.S.
Securities, and the respective U.S. Underwriters will pay any additional stock
transfer taxes involved in further transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
U.S. Option Securities (at the expense of the Company) to the U.S.
Representatives on the date specified by the U.S. Representatives (which shall
be within three Business Days after exercise of said option) for the respective
accounts of the several U.S. Underwriters, against payment by the several U.S.
Underwriters through the U.S. Representatives of the purchase price thereof to
or upon the order of the Company by wire transfer payable in same-day funds to
the account specified by the Company. If settlement for the U.S. Option
Securities occurs after the Closing Date, the Company will deliver to the U.S.
Representatives on the settlement date for the U.S. Option Securities, and the
obligation of the U.S. Underwriters to purchase the U.S. Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
On the Closing Date, the Selling Stockholder will surrender
certificates, duly endorsed to the Company or in blank, for shares of Class B
Stock to the Company or its transfer agent for conversion into the U.S.
Underwritten Securities. The Company shall or shall cause its transfer agent to,
on the Closing Date upon receipt of such certificates, effect such conversion
and issue the U.S. Underwritten Securities for the respective accounts of the
several U.S. Underwriters.
4. Offering by U.S. Underwriters. It is understood that the several
U.S. Underwriters propose to offer the U.S. Securities for sale to the public as
set forth in the U.S. Prospectus.
5. Agreements.
(i) The Company agrees with the several U.S. Underwriters that:
(a) The Company will use its reasonable 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 Prospectuses or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectuses is otherwise required
under Rule 424(b), the Company will cause the Prospectuses, 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 U.S.
Representatives of such timely filing.
9
Upon your request, the Company will cause the Rule 462(b) Registration
Statement, completed in compliance with the Act and the applicable rules
and regulations thereunder, to be filed with the Commission pursuant to
Rule 462(b) and will provide evidence satisfactory to the U.S.
Representatives of such filing. The Company will promptly advise the U.S.
Representatives (1) when the Registration Statement, if not effective at
the Execution Time, shall have become effective, (2) when the Prospectuses,
and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectuses or for any additional information, (5)
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 (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the U.S. Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its reasonable best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification 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 Prospectuses as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectuses to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (1) notify the U.S. Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (i)(a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3) supply
any supplemented Prospectuses 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 U.S. Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the U.S. Representatives and counsel
for the U.S. Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other U.S.
Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an U.S. Underwriter or dealer
may be required by the Act, as many copies of each Preliminary Prospectus
and the Prospectuses and any supplement thereto as the U.S. Representatives
may reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
10
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the U.S.
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, for a period of 90 days following the Execution Time,
offer, sell, contract to sell, pledge or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company), directly or indirectly, or announce the
offering of, or file a registration statement with the Commission in
respect of, any other shares of Common Stock or any securities convertible
into, or exercisable or exchangeable for, shares of Common Stock, or grant
any options, warrants or similar securities to purchase Common Stock;
provided, however, that the Company may issue and sell Common Stock or make
any awards pursuant to any employee stock option plan, stock ownership plan
or dividend reinvestment plan of the Company in effect at the Execution
Time and the Company may issue Common Stock issuable upon the conversion of
securities (including Class B Stock) or the exercise of warrants
outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the
Prospectuses and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectuses and
all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the original issuance and sale of the
Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, the International Underwriting Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Securities; (v) the
listing of the Option Securities on the New York Stock Exchange; (vi) any
registration or qualification of the Securities for offer and sale
11
under the securities or blue sky laws of the several states or Canada or
any other foreign jurisdiction or locality therein (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters
relating to such registration and qualification); (vii) any filings
required to be made with the National Association of Securities Dealers,
Inc. (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such filings); (viii) the transportation
and other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities;
(ix) the fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the Company
and the Selling Stockholder subject as set forth in the last sentence of
this paragraph (h) of Section 5 to the Registration Rights Agreement (as
defined); (x) the conversion of the Class B Stock into the Securities; and
(xi) all other costs and expenses incident to the performance by the
Company and the Selling Stockholder of their obligations hereunder. This
paragraph (h) of Section 5 shall in no way be interpreted to amend, alter
or suspend the terms and provisions of the Registration Rights Agreement
dated March 30, 1993, between the Company and the Selling Stockholder (the
"Registration Rights Agreement") with respect to the rights and obligations
of the Company and the Selling Stockholder vis-a-vis each other, but not
with respect to the rights of the U.S. Underwriters pursuant to this
Agreement.
(ii) The Selling Stockholder agrees with the several U.S. Underwriters
that:
(a) The Selling Stockholder will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file (or participate in
the filing of) a registration statement with the Commission in respect of,
or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Exchange
Act with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such capital
stock, or publicly announce an intention to effect any such transaction,
for a period of 90 days following the Execution Time, other than the
conversion of Class B Stock into Common Stock.
(b) The Selling Stockholder will not take any action designed to or
which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(c) The Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of any change in information in the Registration
Statement or the Prospectuses relating to the Selling Stockholder.
(iii) Each U.S. Underwriter agrees that (a) it is not purchasing any
of the U.S. Securities for the account of anyone other than a United States or
Canadian Person, (b) it has not offered or sold, and will not offer or sell,
directly or indirectly, any of the U.S. Securities or distribute any U.S.
Prospectus to any person outside of the United States or Canada, or to anyone
other than a United States or Canadian Person, (c) any dealer to whom it may
sell any of the U.S. Securities will represent that it is not
12
purchasing for the account of anyone other than a United States or Canadian
Person and agree that it will not offer or resell, directly or indirectly, any
of the U.S. Securities outside of the United States or Canada, or to anyone
other than a United States or Canadian Person or to any other dealer who does
not so represent and agree; provided, however, that the foregoing shall not
restrict (i) purchases and sales between the U.S. Underwriters on the one hand
and the Managers on the other hand pursuant to the Agreement Between U.S.
Underwriters and Managers, (ii) stabilization transactions contemplated under
the Agreement Between U.S. Underwriters and Managers, conducted through ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney (or through the U.S. Representatives and the Lead Managers) as part
of the distribution of the Securities and (iii) sales to or through (or
distributions of U.S. Prospectuses or U.S. Preliminary Prospectuses to) United
States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account of anyone
other than a United States or Canadian Person and (d) the executive officers and
directors of the Company and NITC, other than ▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, may sell, pledge or otherwise dispose of up to an aggregate of 200,000
shares during the period beginning on the Execution Time and ending on August
14, 1998.
(iv) The agreements of the U.S. Underwriters set forth in paragraph
(iii) of this Section 5 shall terminate upon the earlier of the following
events:
(a) a mutual agreement of the U.S. Representatives and the Lead
Managers to terminate the selling restrictions set forth in paragraph (iii)
of this Section 5 and in Section 5(iii) of the International Underwriting
Agreement; or
(b) the expiration of a period of 30 days after the Closing Date,
unless (1) the Lead Managers shall have given notice to the Company, the
Selling Stockholder and the U.S. Representatives that the distribution of
the International Securities by the Managers has not yet been completed or
(2) the U.S. Representatives shall have given notice to the Company, the
Selling Stockholder and the Managers that the distribution of the U.S.
Securities by the U.S. Underwriters has not yet been completed. If such
notice by the U.S. Representatives or the Lead Managers is given, the
agreements set forth in such paragraph (iii) shall survive until the
earlier of (A) the event referred to in clause (a) of this subsection (iv)
or (B) the expiration of an additional period of 30 days from the date of
any such notice.
6. Conditions to the Obligations of the U.S. Underwriters. The
obligations of the U.S. Underwriters to purchase the U.S. Underwritten
Securities and the U.S. Option Securities, as the case may be, shall be subject
to the accuracy of the representations and warranties on the part of the Company
and the Selling Stockholder contained herein as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and the Selling Stockholder made in
any certificates pursuant to the provisions hereof, to the performance by the
Company and the Selling Stockholder of their respective obligations hereunder
and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the U.S. Representatives agree in writing to a
later time, the Registration Statement will become effective not later than
(i) 6:00 PM New York City time on the date of determination of the public
offering price, if such
13
determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 9:30 AM on the Business Day following the day on which the
public offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectuses, or
any supplement thereto, is required pursuant to Rule 424(b), the
Prospectuses, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have caused ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the
Company, to have furnished to the U.S. Representatives their opinion, dated
the Closing Date and addressed to the U.S. Representatives, to the effect
that:
(i) each of the Company, NITC and Navistar Financial
Corporation ("NFC") is validly existing as a corporation and in good
standing under the General Corporation Law of the State of Delaware.
Under their respective Certificates of Incorporation and By-Laws, each
of the Company, NITC and NFC has the corporate power and authority
necessary to own and lease its properties and to conduct its business
as described in the Prospectuses;
(ii) this Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Company;
(iii) the U.S. Option Securities to be sold by the Company
pursuant to this Agreement are duly authorized, validly issued, fully
paid and nonassessable [; the sale of the U.S. Option Securities is
not subject to any preemptive rights under the terms of the statue
under which the Company is incorporated, under the Company's
Certificate of Incorporation or under any contractual provision of
which such counsel has knowledge]; the Securities to be purchased by
the Underwriters from the Selling Stockholder pursuant to this
Agreement and the International Underwriting Agreement are duly
authorized, validly issued, fully paid and nonassessable;
(iv) the Company's authorized capital stock (including its
authorized Common Stock) is as set forth under the heading
"Capitalization" in the Prospectuses and conforms in all material
respects to the description of the terms thereof contained under the
heading "Description of Capital Stock" in the Prospectuses;
(v) the Company's execution and delivery of this Agreement and
the International Underwriting Agreement and the sale of the
Securities to you in accordance with this Agreement and the
International Underwriting Agreement and the consummation by the
Company of the other transactions contemplated herein or therein
(including the conversion of the Class B Stock to Common Stock) do not
(A) violate the Company's Certificate of Incorporation or Bylaws or
(B) constitute a violation by the Company of
14
any applicable provision of any law, statute or regulation (except
that such counsel expresses no opinion in this paragraph as to
compliance with any disclosure requirement or any prohibition against
fraud or misrepresentation or as to whether performance of the
indemnification or contribution provisions in this Agreement or the
International Underwriting Agreement would be permitted) or (C)
breach, or result in a default under, any existing obligation of the
Company or any of its subsidiaries under any of the agreements set
forth on Schedule A attached thereto (which representatives of the
Company have advised such counsel include all material debt agreements
and instruments of or binding on the Company or any of the Company's
subsidiaries). The agreements in Schedule A contain debt incurrence
tests and/or other financial covenants and tests; such counsel has not
attempted to independently apply any of those covenants or tests.
Representatives of the Company have however advised such counsel that
they have applied all of those tests and covenants and have determined
that none of those tests or covenants will breached by the sale of the
Securities to you or by any of the other actions cited at the
beginning of this paragraph, and such counsel has assumed without
investigation that such advice and determination are correct;
(vi) such counsel has no knowledge about any legal action or any
governmental action, investigation or proceeding that is pending or
threatened against the Company, any of the Company's subsidiaries or
any of their property that has caused such counsel to conclude that
such preceding is required by Item 103 of Regulation S-K to be
described in the Prospectuses but that is not so described; such
counsel has no knowledge about any contract or other document to which
the Company or any of its subsidiaries is a party or to which any of
their property is subject that has caused such counsel to conclude
that such contract or other document is required to be described in
the Prospectuses but is not so described or is required to be filed as
an exhibit to the Registration Statement but has not been so filed;
(vii) a member of the Commission's staff has advised such counsel
by telephone that the Commission has entered an order declaring the
Registration Statement effective under the Act on June [ ], 1998 (the
"effective date"); such counsel has no knowledge that any stop order
suspending its effectiveness has been issued or that any proceedings
for that purpose are pending before, or overtly threatened by, the
Commission; the Prospectuses, and any supplements thereto, have been
filed with the Commission within the time period required by Rule
424(b) under the Act; and such counsel shall state in a separate
paragraph that nothing has come to such counsel's attention that has
caused such counsel to conclude that (A) the Registration Statement at
the Effective Date 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 (B) the
Prospectuses at the date each bears or on the Closing Date contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (C) as of the effective date, either the Registration
Statement
15
or the Prospectuses appeared on its face not to be responsive in all
material respects to the requirements of Form S-3;
(viii) the Company was not required to file with, or obtain any
consent, approval, authorization or order of any governmental agency
or body for the sale of the Securities under this Agreement or the
International Underwriting Agreement and the consummation by the
Company of the other transactions contemplated hereby or thereby
(including the conversion of the Class B Stock to Common Stock),
except for the registration of the offer and sale of the Securities
under the Act and as may be required under [the Exchange Act] in
connection with the purchase and distribution of the Securities by
the Underwriters;
(ix) the Company is not and, immediately after the sale of the
U.S. Option Securities to the U.S. Underwriters and the application of
the net proceeds therefrom as described in the Prospectus under the
caption "Use of Proceeds" will not be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended, and
(x) the information in the Prospectuses under the heading
"Certain United States Tax Consequences to Non-United States Holders"
to the extent that it summarizes laws, governmental rules and
regulations or documents is correct 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 New York, the General Corporation Law of the State of Delaware or the
Federal laws of 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 U.S. Underwriters and (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the
Company and public officials. The opinion of such counsel shall be rendered
to the U.S. Underwriters at the request of the Company and shall so state.
References to the Prospectuses in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Company shall have caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Senior
Vice President and General Counsel of the Company, to have furnished to the
U.S. Representatives his opinion, dated the Closing Date and addressed to
the U.S. Representatives, to the effect that:
(i) each of the Company, NITC and NFC (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 or lease, as
the case may be, and to operate its properties and conduct its
business as described in the Prospectuses, and has been duly qualified
to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction wherein it owns or leases material
properties or conducts material business and where the failure to be
so qualified would, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken
16
as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectuses; notwithstanding the foregoing limitation, the NITC is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of the States of Arkansas, Indiana, Illinois,
Ohio, Texas and Wisconsin;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectuses, 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 interest, claim, lien or encumbrance;
(iii) the Company's authorized capital stock (including its
authorized Common Stock) is as set forth under the heading
"Capitalization" in the Prospectuses and conforms in all material
respects to the description of the terms thereof contained under the
heading "Description of Capital Stock" in the Prospectuses;
(iv) the outstanding shares of Common Stock (including the
Securities being sold hereunder and under the International
Underwriting Agreement) and Class B Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the U.S. Underwriters pursuant hereto and
by the International Underwriters pursuant to the International
Underwriting Agreement, will be fully paid and nonassessable; the
Securities are duly listed, and admitted and authorized for trading,
on the New York Stock Exchange subject to official notice of issuance
and evidence of satisfactory distribution, on the New York Stock
Exchange; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to
subscribe for the Securities and, except as set forth in the
Prospectuses, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectuses, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectuses, or to be
filed as an exhibit thereto, which is not described or filed as
required; and the information in the Prospectuses under the headings
"Risk Factors--Impact of Government Regulation", "Management's
Discussion and Analysis of Results and Operations and Financial
Condition--Environmental Matters" and
17
"Description of Capital Stock" to the extent that it summarizes laws,
governmental rules and regulations or documents is correct in all
material respects;
(vi) none of the issuance and sale of the Securities, the
consummation of any other of the transactions contemplated herein or
in the International Underwriting Agreement or the fulfillment of the
terms hereof or thereof will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or the Subsidiaries pursuant to (A)
the Certificate of Incorporation or Bylaws of the Company or the
Subsidiaries, (B) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument known to such
counsel to which the Company or any Subsidiary is a party or bound or
to which its or their property is subject, or (C) any statute, law,
rule, regulation, judgment, order or decree known to such counsel to
be applicable to the Company or any of the Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or the
Subsidiaries or any of its or their property, which violation or
default would, in the case of clauses (B) and (C) above, either
individually or in the aggregate with all other violations and
defaults referred to in this paragraph (vi) (if any), have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectuses;
(vii) such counsel has no reason to believe that the
Registration Statement on the Effective Date 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 Prospectuses as of their dates and
on the Closing Date included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than
the financial statements and other financial information contained
therein, as to which such counsel need express no opinion); and
(viii) except as set forth in the Prospectuses, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Illinois, the General Corporation Law of the State of Delaware or the
Federal laws of the United States, to the extent such counsel deems 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 U.S. Representatives and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers
of the Company and public officials. The opinion of such counsel shall be
18
rendered to the U.S. Representatives at the request of the Company and
shall so state. References to the Prospectuses in this paragraph (c)
include any supplements thereto at the Closing Date.
(d) The Selling Stockholder shall have caused ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, counsel for the Selling Stockholder, to have furnished to the
U.S. Representatives their opinion, dated the Closing Date and addressed to
the U.S. Representatives, to the effect that:
(i) this Agreement and the International Underwriting Agreement
have been duly authorized, executed and delivered by the Selling
Stockholder and, assuming that the Board of Directors of the Company
has approved the transactions contemplated by this Agreement, the
Selling Stockholder has full legal right and authority to surrender
the Class B Stock for conversion into the Securities and to sell,
transfer and deliver the Class B Stock and, assuming the conversion of
the Class B Stock into the Common Stock as provided in this Agreement
and the International Underwriting Agreement, the Securities in the
manner provided in this Agreement and in the International
Underwriting Agreement;
(ii) the delivery to the several Underwriters of certificates
for the Securities against payment therefor as provided herein and in
the International Underwriting Agreement, assuming that the Board of
Directors of the Company has approved the transactions contemplated by
this Agreement, will pass good and marketable title to the Class B
Stock and, assuming the conversion of the Class B Stock into the
Common Stock as provided in this Agreement and the International
Underwriting Agreement, the Securities to the several Underwriters,
free and clear of all liens, encumbrances, equities and claims
whatsoever;
(iii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Selling Stockholder of the transactions contemplated herein and in the
International Underwriting Agreement, except such as may have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained; and
(iv) none of the sale of the Class B Stock or, assuming the
conversion of the Class B Stock into the Common Stock as provided in
this Agreement and the International Underwriting Agreement, the
Securities, the consummation of any other of the transactions
contemplated herein or in the International Underwriting Agreement by
the Selling Stockholder or the fulfillment of the terms hereof or
thereof by the Selling Stockholder, assuming that the Board of
Directors of the Company has approved the transactions contemplated by
this Agreement, will conflict with, result in a breach or violation
of, or constitute a default under any law or the Trust Agreement or
the terms of the settlement agreement dated March 30, 1993, as
amended, between the Company and the Selling Stockholder, or any
judgment, order or decree known to such counsel to be applicable to
the
19
Selling Stockholder of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Selling Stockholder.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the Employee Retirement Income Security Act of
1974, as amended, or the application of laws of any jurisdiction other than
the State of New York, the State of Delaware or the Federal laws of 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 U.S.
Underwriters, and (B) as to matters of fact, to the extent they deem
proper, on certificates of the Selling Stockholder and public officials.
The opinion of such counsel shall be rendered to the U.S. Underwriters at
the request of the Selling Stockholder and shall so state.
(e) The U.S. Representatives shall have received from Cravath, Swaine
& ▇▇▇▇▇, counsel for the U.S. Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the U.S. Representatives, with respect to
the issuance and sale of the Securities, the Registration Statement, the
Prospectuses (together with any supplement thereto) and other related
matters as the U.S. Representatives may reasonably require, and the Company
and the Selling Stockholder shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) The Company shall have furnished to the U.S. Representatives a
certificate of the Company, signed by the Executive Vice President and
Chief Financial Officer of the Company and the Treasurer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectuses, any
supplements to the Prospectuses, this Agreement and the International
Underwriting Agreement and that:
(i) the representations and warranties of the Company in this
Agreement and in the International Underwriting Agreement are true and
correct in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date, and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the 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 or incorporated by reference in the Prospectuses (exclusive
of any supplement thereto), there has been no material adverse change
in the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
20
(g) The Selling Stockholder shall have furnished to the U.S.
Representatives a certificate, signed by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the Secretary of
the Supplemental Committee of the Selling Stockholder, dated the Closing
Date, to the effect that (i) the signer of such certificate has carefully
examined the Registration Statement, the Prospectuses, any supplement to
the Prospectuses, this Agreement and the International Underwriting
Agreement, (ii) the representations and warranties of the Selling
Stockholder in this Agreement and in the International Underwriting
Agreement are true and correct in all material respects on and as of the
Closing Date to the same effect as if made on the Closing Date and (iii)
the Selling Stockholder has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
the Closing Date.
(h) The Company shall have caused Deloitte & Touche, LLP to have
furnished to the U.S. Representatives and the Selling Stockholder, at the
Execution Time and at the Closing Date, letters, dated respectively as of
the Execution Time and as of the Closing Date, in form and substance
satisfactory to the U.S. Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act
and the respective applicable published rules and regulations thereunder
and that they have performed a review of the unaudited interim financial
information of the Company for the three-month periods ended January 31,
1998 and 1997 and April 30, 1998 and 1997 and as at January 31, 1998 and
1997 and April 30, 1998 and 1997, in accordance with Statement on Auditing
Standards No. 71, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference in
the Registration Statement and the Prospectuses and reported on by
them comply as to 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 under
Statement on Auditing Standards No. 71, of the unaudited interim
financial information for the three-month periods ended January 31,
1998 and 1997, and as at January 31, 1998 and 1997; 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, audit, organizational and
finance committees of the Company and its 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 October 31, 1997, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the
Registration Statement and the Prospectuses do not comply as to
form in all material respects with applicable accounting
requirements of the Act and the Exchange Act and the related
rules
21
and regulations adopted by the Commission; 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 by reference in the Registration Statement and
the Prospectuses;
(2) with respect to the period subsequent to January 31,
1998, there were, at a specified date not more than five days
prior to the date of the letter, any changes in the capital
stock, increase in consolidated debt of the Company or decreases
in the total assets or shareowners' equity of the Company and its
subsidiaries as compared with the amounts shown on the January
31, 1998, consolidated statement of financial condition included
in the Registration Statement and the Prospectuses, or for the
period from February 1, 1998, to such specified date there were
any decreases, as compared with the corresponding period in the
preceding fiscal year, in consolidated sales of manufactured
product, total sales and revenue, income before income taxes or
net income of the Company and its subsidiaries, except in all
instances for changes, increases 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 U.S.
Representatives; or
(3) the information included or incorporated by reference
in the Registration Statement and the Prospectuses in response to
Regulation S-K, Item 301 (Selected Financial Data) and Item 402
(Executive Compensation), is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(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 Prospectuses, including
the information set forth under the captions "Prospectus Summary",
"Risk Factors", "Capitalization", "Selected Consolidated Financial and
Operating Data", "Management's Discussion and Analysis of Results of
Operations and Financial Condition", "Business" and "Description of
Capital Stock" in the Prospectuses, the information included or
incorporated by reference in Items 1, 6, 7, 11 and 13 of the
Company's Annual Report on Form 10-K, as amended, incorporated by
reference in the Registration Statement and the Prospectuses, the
information included in the "Management's Discussion and Analysis of
Results of Operations and Financial Condition" included in the
Company's Quarterly Report on Form 10-Q incorporated by reference in
the Registration Statement and the Prospectuses, the information
included in the Company's Current Reports on Form 8-K incorporated by
reference in the Registration Statement and the Prospectuses and the
information included in the Company's Proxy Statement incorporated by
reference in the Registration Statement and the
22
Prospectuses agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(j) The Securities shall have been listed and admitted and authorized
for trading on the New York Stock Exchange, and satisfactory evidence of
such actions shall have been provided to the U.S. Representatives.
(k) At the Execution Time, the Company shall have furnished to the
U.S. Representatives a letter substantially in the form of Exhibit A hereto
from each executive officer and director of the Company or NITC addressed
to the U.S. Representatives.
(l) Prior to the Closing Date, the Company and the Selling
Stockholder shall have furnished to the U.S. Representatives such further
information, certificates and documents as the U.S. Representatives may
reasonably request.
(m) The closing of the purchase of the International Securities
pursuant to the International Underwriting Agreement shall have occurred.
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 U.S. Representatives and counsel for the U.S. Underwriters,
this Agreement and all obligations of the U.S. Underwriters hereunder may be
canceled at, or at any time prior to, the Closing Date by the U.S.
Representatives. Notice of such cancelation shall be given to the Company and
the Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & ▇▇▇▇▇, counsel for the U.S.
Underwriters, at Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
on the Closing Date.
7. Reimbursement of U.S. Underwriters' Expenses. If the sale of the
U.S. Securities provided for herein is not consummated because any condition to
the obligations of the U.S. Underwriters set forth in Section 6 hereof relating
to the Company 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 any of the U.S. Underwriters, the Company
will reimburse the U.S. Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the U.S. Securities. If the sale of the
U.S. Securities provided for herein is not consummated because any condition to
the obligations
23
of the U.S. Underwriters set forth in Section 6 hereof relating to the Selling
Stockholder is not satisfied or because of any refusal, inability or failure on
the part of the Selling Stockholder to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the U.S.
Underwriters, the Selling Stockholder will reimburse the U.S. Underwriters
severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the U.S.
Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each U.S. Underwriter, the directors, officers,
employees and agents of each U.S. Underwriter, each person who controls any U.S.
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in any U.S. Preliminary Prospectus or International Preliminary Prospectus or
either of the Prospectuses, or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any U.S. Underwriter through the U.S. Representatives specifically for inclusion
therein; provided further, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the Selling
Stockholder specifically for inclusion therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) The Selling Stockholder agrees to indemnify and hold harmless
each U.S. Underwriter, the directors, officers, employees and agents of each
U.S. Underwriter and each person who controls any U.S. Underwriter within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each U.S. Underwriter, but only with
reference to written information furnished to the Company by or on behalf of the
Selling Stockholder specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which the Selling Stockholder may otherwise have. The Company and the
U.S. Underwriters acknowledge that the information under the heading "Selling
Stockholder" related to the number of shares of Common Stock held by the Selling
Stockholder constitutes the only information furnished in writing by or on
behalf of the Selling Stockholder for inclusion in any U.S. Preliminary
Prospectus or International Preliminary Prospectus or the Prospectuses.
24
(c) Each U.S. Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, each person who controls the
Company within the meaning of either the Act or the Exchange Act and the Selling
Stockholder, to the same extent as the foregoing indemnity to each U.S.
Underwriter, but only with reference to written information relating to such
U.S. Underwriter furnished to the Company by or on behalf of such U.S.
Underwriter through the U.S. Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any U.S. Underwriter may otherwise have.
The Company and the Selling Stockholder acknowledge that the statements set
forth in the last paragraph of the cover page regarding delivery of the
Securities, the legend in block capital letters on page 2 related to
stabilization, syndicate covering transactions and penalty bids and, under the
heading "Underwriting", (i) the sentences related to concessions and
reallowances, (ii) the paragraphs related to the Agreements Between the U.S.
Underwriters and the Managers and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids in any U.S. Preliminary
Prospectus or International Prelimi nary Prospectus and the Prospectuses
constitute the only information furnished in writing by or on behalf of the
several U.S. Underwriters for inclusion in any U.S. Preliminary Prospectus or
International Preliminary Prospectus or the Prospectuses.
(d) 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), (b) or (c) 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), (b) or (c) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the reasonable 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 (which consent shall not unreasonably
be withheld), settle or compromise or consent to the entry of any judgment with
respect to
25
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.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Selling Stockholder and the
U.S. Underwriters agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company, the Selling Stockholder and one or more of the U.S.
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company, by the Selling Stockholder and by the
U.S. Underwriters from the offering of the U.S. Securities; provided, however,
that in no case shall any U.S. Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the U.S. Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the U.S. Securities pur chased by such U.S. Underwriter hereunder.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company, the Selling Stockholder and the U.S. Underwriters
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company, of the Selling
Stockholder and of the U.S. Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and by the Selling Stockholder
shall be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by the Selling Stockholder, and benefits received
by the U.S. Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the
U.S. Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company, the Selling Stockholder or the U.S. Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Stockholder and the U.S. Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwith standing the provisions of this
paragraph (e), no person guilty of fraudulent misrepresen tation (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 a U.S. Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of an U.S. Underwriter shall have the same rights to contribution as such
U.S. Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this para graph (e). Notwithstanding the
foregoing, this paragraph (e) shall not be interpreted to provide for any
obligation of the Selling Stockholder in excess of the obligations to which the
Selling Stockholder would be subject under paragraph (b) of this Section 8 if
indemnity under such paragraph (b) had been available.
26
9. Default by a U.S. Underwriter. If any one or more U.S.
Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining U.S. Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of U.S. Securities set forth opposite their names
in Schedule I hereto bears to the aggregate amount of U.S. Securities set forth
opposite the names of all the remaining U.S. Underwriters) the U.S. Securities
which the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of U.S.
Securities which the defaulting U.S. Underwriter or U.S. Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of U.S. Securities
set forth in Schedule I hereto, the remaining U.S. Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the U.S. Securities, and if such nondefaulting U.S. Underwriters do not purchase
all the U.S. Securities, this Agreement will terminate without liability to any
nondefaulting U.S. Underwriter, the Selling Stockholder or the Company. In the
event of a default by any U.S. Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the U.S. Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectuses or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting U.S. Underwriter of its liability, if any, to the
Company, the Selling Stockholder and any nondefaulting U.S. Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the U.S. Representatives, by notice given to the
Company prior to delivery of and payment for the U.S. Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission on the New York, Chicago or Pacific Stock Exchanges
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 the
New York Stock 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 sole judgment of the
U.S. Representatives, impractical or inadvisable to proceed with the offering or
delivery of the U.S. Securities as contemplated by the U.S. 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, of the Selling Stockholder and of the U.S. Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter, the Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the U.S. Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the U.S. Representatives, will be
mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, New
27
York, 10013, Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to the Legal Department (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇)
and confirmed to it at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department; or, if sent to the Selling
Stockholder, will be mailed, delivered or telefaxed to ▇▇▇▇▇ Fargo Bank (Fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, and to the Executive
Director (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Executive
Director.
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 applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counter parts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Class B Stock" shall mean the Class B Common Stock, $0.10 par value
per share, of the Company.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
28
"International Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the International Securities
referred to in Section 1(i)(a) above and any preliminary prospectus with
respect to the offering of the International Securities included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Preliminary Prospectus" shall mean the U.S. Preliminary Prospectus or
the International Preliminary Prospectus, as the case may be.
"Registration Statement" shall mean the registration statement
referred to in Section 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean 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.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(i)(a) hereof.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. or Salomon
Brothers Inc, to the extent that either such party is a signatory to this
Agreement.
"U.S." or "United States" shall mean the United States of America
(including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership or other entity created or organized in or under the laws of
the United States or Canada or of any political subdivision thereof, or any
estate or trust the income of which is subject to United States or Canadian
Federal income taxation, regardless of its source (other than any non-
United States or Non-Canadian branch of any United States or Canadian
Person), and shall include any United States or Canadian branch of a person
other than a United States or Canadian Person.
"U.S. Preliminary Prospectus" shall mean any preliminary prospectus
with respect to the offering of the U.S. Securities referred to in Section
1(i)(a) above and any preliminary prospectus with respect to the offering
of the U.S. Securities included in the Registration Statement at the
Effective Date that omits Rule 430A Information.
29
18. Scope of Agreement. This Agreement shall in no way be
interpreted to amend, alter or suspend the terms and provisions of the
Registration Rights Agreement with respect to the rights and obligations of the
Company and the Selling Stockholder vis-a-vis each other, but not with respect
to the rights of the U.S. Underwriters pursuant to this Agreement.
30
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, the Selling Stockholder and the several U.S. Underwriters.
Very truly yours,
Navistar International Corporation
By: .....................................
Name:
Title:
Navistar International Transportation Corp.
Retiree Supplemental Benefit Trust
By: ▇▇▇▇▇ Fargo, N.A., as Trustee
By: .....................................
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: ............................
Name:
Title:
For itself and the other
several U.S. Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
----------
U. S. Underwriters Number of U.S. Underwritten
------------------ ---------------------------
Securities to be Purchased/b/
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc..........................
Credit Suisse First Boston Corporation....
▇.▇. ▇▇▇▇▇▇ Securities Inc. ..............
----------
Total................................ 13,894,103
==========
---------------------
/b/ Not including the 2,000,000 Repurchased Securities, which are to be
allocated to the several U.S. Underwriters pursuant to paragraph (c) of Section
2 hereto.
EXHIBIT A
[Letterhead of officer or director]
Navistar International Corporation
----------------------------------
Public Offering of Common Stock
-------------------------------
May [ ], 1998
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation and
Credit Suisse First Boston (Europe) Limited
▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇.▇. ▇▇▇▇▇▇ Securities Ltd.
As U.S. Representatives and Lead Managers of the several Underwriters,
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
U.S. Underwriting Agreement and International Underwriting Agreement (together,
the "Underwriting Agreements"), among Navistar International Corporation, a
Delaware corporation (the "Company"), the Navistar International Transportation
Corp. Retiree Supplemental Benefit Trust and each of you as representatives or
managers, as the case may be, of a group of U.S. Underwriters or International
Managers (together, the "Underwriters") named therein, relating to an
underwritten public offering of Common Stock, $0.10 par value per share (the
"Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreements, the undersigned will not, without the prior written
consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file (or participate in the filing of) a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for the period beginning on the date
of the Underwriting Agreements and ending on August 14, 1998, other than shares
of Common Stock disposed of as bona fide gifts approved by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. It
is understood that (i) the undersigned may at any time exercise options
exercisable into shares of Common Stock without the prior written consent of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., provided that the shares received upon such exercise are held
by the undersigned subject to the terms of this agreement and (ii) you and the
other Underwriters will agree with the Company in the Underwriting Agreements to
permit an aggregate of 200,000 shares of Common Stock to be sold, pledged or
otherwise disposed of by the officers or directors of the Company or Navistar
International Transportation Corp. during the period referred to above.
The undersigned hereby represents and warrants that he/she has sold,
pledged or otherwise disposed of [ ] shares of the capital stock of the Company
or any securities convertible into or exercisable or exchangeable for such
capital stock (including pursuant to option exercises) during the period between
May 1, 1998 and the date hereof, inclusive.
3
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer or director]
[Name and address of officer or director]