<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 1998
REGISTRATION STATEMENT NO. 333-65697
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
------------------------
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE CIT GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 1211 AVENUE OF THE AMERICAS 13-2994534
(STATE OR OTHER JURISDICTION OF NEW YORK, NEW YORK 10036 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) (212) 536-1390 IDENTIFICATION NO.)
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ERNEST D. STEIN, ESQ.
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL & SECRETARY
THE CIT GROUP, INC.
1211 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 536-1390
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
PLEASE SEND COPIES TO:
<TABLE>
<S> <C>
PAUL N. ROTH, ESQ. RICHARD J. SANDLER, ESQ.
ANDRE WEISS, ESQ. DAVIS POLK & WARDWELL
SCHULTE ROTH & ZABEL LLP 450 LEXINGTON AVENUE
900 THIRD AVENUE NEW YORK, NEW YORK 10017
NEW YORK, NEW YORK 10022
</TABLE>
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statements for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Registration Fee....................................... $ 393,764
Blue Sky Fees and Expenses................................. 5,000
Transfer Agent Fees and Expenses........................... 2,000
Legal Fees and Expenses.................................... 235,000
Accounting Fees and Expenses............................... 125,000
Printing Expenses.......................................... 270,000
Miscellaneous Expenses..................................... 69,236
----------
Total Fees and Expenses.......................... $1,100,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection (a) of Section 145 of the General Corporation Law of Delaware
empowers a corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation), by reason of the
fact that he is or was a director, officer, employee or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section 145 further provides that: (i) to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) or in the
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith; and (ii) indemnification provided for by Section 145 shall
not be deemed exclusive of any other rights to which the indemnified party may
be entitled. In
II-1
<PAGE> 3
addition, Section 145 empowers the corporation to purchase and maintain
insurance on behalf of any person acting in any capacities set forth in the
second preceding paragraph against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Giving effect to the consummation of the offering, Article X of the By-Laws of
the Registrant provides, in effect, that, in addition to any rights afforded to
an officer, director or employee of the Registrant by contract or operation of
law, the Registrant may indemnify any person who is or was a director, officer,
employee or agent of the Registrant, or of any other corporation which he served
at the request of the Registrant, against any and all liability and reasonable
expense incurred by him in connection with or resulting from any claim, action,
suit or proceeding (whether brought by or in the right of the Registrant or such
other corporation or otherwise), civil or criminal, in which he may have become
involved, as a party or otherwise, by reason of his being or having been such
director, officer, employee or agent of the Registrant or such other
corporation, whether or not he continues to be such at the time such liability
or expense is incurred, provided that such person acted in good faith and in
what he reasonably believed to be the best interests of the Registrant or such
other corporation, and, in connection with any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful.
Article X further provides that any person who is or was a director, officer,
employee or agent of the Registrant or any direct or indirect wholly-owned
subsidiary of the Registrant shall be entitled to indemnification as a matter of
right if he has been wholly successful, on the merits or otherwise, with respect
to any claim, action, suit, or proceeding of the type described in the foregoing
paragraph.
In addition, the Registrant maintains directors' and officers' reimbursement and
liability insurance pursuant to standard form policies with aggregate limits of
$90,000,000. The risks covered by such policies do not exclude liabilities under
the Securities Act of 1933.
ITEM 16. EXHIBITS
The following exhibits either are filed herewith or were previously filed, as
indicated below:
<TABLE>
<S> <C> <C>
1* -- Form of Underwriting Agreement.
5* -- Opinion of Schulte Roth & Zabel LLP in respect of the
legality of the Class A Common Stock registered hereunder.
8* -- Opinion of Schulte Roth & Zabel LLP in respect of certain
tax matters (included in Exhibit 5).
23.1* -- Consent of KPMG Peat Marwick LLP.
23.2* -- Consent of Schulte Roth & Zabel LLP (included in Exhibit 5).
24** -- Power of Attorney.
</TABLE>
- ---------------
* Filed herewith.
** Previously filed.
II-2
<PAGE> 4
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described under Item 15 above,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
(3) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this Registration Statement as of the time it was declared effective.
(4) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Livingston, State of New
Jersey, on the 12th day of November, 1998.
THE CIT GROUP, INC.
By: /s/ ERNEST D. STEIN
-----------------------------------
Ernest D. Stein
Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 1 to the Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE AND TITLE DATE
------------------- ----
<S> <C>
/s/ ALBERT R. GAMPER, JR. November 12, 1998
- --------------------------------------------------------
Albert R. Gamper, Jr.
President, Chief Executive Officer and Director
(principal executive officer)
/s/ JOSEPH M. LEONE November 12, 1998
- --------------------------------------------------------
Joseph M. Leone
Executive Vice President and Chief Financial Officer
(principal financial and accounting officer)
*
- --------------------------------------------------------
Daniel P. Amos
Director
*
- --------------------------------------------------------
Yoshiro Aoki
Director
*
- --------------------------------------------------------
Takasuke Kaneko
Director
*
- --------------------------------------------------------
Hisao Kobayashi
Director
*
- --------------------------------------------------------
Joseph A. Pollicino
Director
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE AND TITLE DATE
------------------- ----
<S> <C>
*
- --------------------------------------------------------
Paul N. Roth
Director
*
- --------------------------------------------------------
Peter J. Tobin
Director
*
- --------------------------------------------------------
Tohru Tonoike
Director
*
- --------------------------------------------------------
Alan F. White
Director
*By: /s/ ERNEST D. STEIN November 12, 1998
---------------------------------------------------
Ernest D. Stein, attorney-in-fact
</TABLE>
Original powers of attorney authorizing Albert R. Gamper, Jr., Ernest D. Stein
and James P. Shanahan and each of them to sign this Post-Effective Amendment No.
1 to the Registration Statement and further amendments hereto on behalf of the
directors and officers of the Registrant indicated above are held by the
Registrant and available for examination pursuant to Rule 302(b) of Regulation
S-T.
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGES
- ------- ----------- ------------
<S> <C> <C> <C>
1* -- Form of Underwriting Agreement. ........................
5* -- Opinion of Schulte Roth & Zabel LLP in respect of the
legality of the Class A Common Stock registered
hereunder. .............................................
8* -- Opinion of Schulte Roth & Zabel LLP in respect of
certain tax matters (included in Exhibit 5). ...........
23.1* -- Consent of KPMG Peat Marwick LLP.
23.2* -- Consent of Schulte Roth & Zabel LLP (included in Exhibit
5). ....................................................
24** -- Power of Attorney. .....................................
</TABLE>
- ---------------
* Filed herewith.
** Previously filed.
<PAGE> 1
Exhibit 1
THE CIT GROUP, INC.
49,000,000 Shares Class A Common Stock
Underwriting Agreement
November , 1998
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Warburg Dillon Read LLC
As representatives of the several underwriters
listed in Schedule I hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
The Dai-Ichi Kangyo Bank, Limited ("DKB") proposes to sell, directly or
indirectly through a wholly owned subsidiary of DKB ("DKB Sub" and, together
with DKB, the "Selling Stockholders") to the several Underwriters listed in
Schedule I hereto (the "Underwriters") for whom you are acting as
representatives (the "Representatives"), and the Underwriters propose to
purchase from such Selling Stockholders, an aggregate of 49,000,000 shares (the
"Underwritten Shares") of Class A Common Stock, par value $.01 per share (the
"Class A Common Stock"), of The CIT Group, Inc. (the "Company") and, for the
sole purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, to sell up to an
additional 7,350,000 shares of Class A Common Stock of the Company (the "Option
Shares"). The Underwritten Shares and the Option Shares are herein referred to
as the "Shares".
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
<PAGE> 2
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement relating to the Shares. The registration statement as amended at the
time when it shall become effective, including information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Securities Act, is referred to in this Agreement as the
"Registration Statement" and the prospectus in the form first used to confirm
sales of Shares is referred to in this Agreement as the "Prospectus". If the
Company has filed an abbreviated registration statement pursuant to Rule 462(b)
under the Securities Act (the "Rule 462 Registration Statement"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement. Any reference in this Agreement to the
Registration Statement, any preliminary prospectus or the Prospectus shall also
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such preliminary
prospectus or the Prospectus, as the case may be, except in each case as may be
modified or superseded by statements in the Prospectus, and any reference to
"amend", "amendment" or "supplement" with respect to the Registration Statement,
any preliminary prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after such date under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") that are deemed to be incorporated by
reference therein.
The Company and DKB hereby agree with the Underwriters as follows:
1. DKB hereby agrees to convert and to cause DKB Sub to convert, on or
prior to the Closing Date (as hereinafter defined), all of the shares of Class B
Common Stock, par value $.01 per share (the "Class B Common Stock") owned by DKB
or DKB Sub, as the case may be, into an identical number of shares of Class A
Common Stock (the "Conversion"). DKB agrees to sell or to cause DKB Sub to sell
the Underwritten Shares to the several Underwriters as hereinafter provided, and
each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees to purchase,
severally and not jointly, from the Selling Stockholders the respective number
of Underwritten Shares set forth opposite such Underwriter's name in Schedule I
hereto at a purchase price per share (the "Purchase Price") of $ .
In addition, DKB agrees to sell or to cause DKB Sub to sell the Option
Shares to the several Underwriters as hereinafter provided, and the Underwriters
on the basis of the representations and warranties herein contained, but subject
to the conditions hereinafter stated, shall have the option to purchase,
severally and
2
<PAGE> 3
not jointly, from the Selling Stockholders up to an aggregate of 7,350,000
Option Shares at the Purchase Price, for the sole purpose of covering
over-allotments (if any) in the sales of Underwritten Shares by the several
Underwriters.
If any Option Shares are to be purchased, the number of Option Shares to
be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as
the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Selling Stockholders by the several Underwriters, subject,
however, to such adjustments to eliminate any fractional Shares as the
Representatives in their sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Shares at
any time (but not more than once) on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives to DKB. Such
notice shall set forth the aggregate number of Option Shares as to which the
option is being exercised and the date and time when the Option Shares are to be
delivered and paid for, which may be the same date and time as the Closing Date
but shall not be earlier than the Closing Date nor later than the tenth full
Business Day (as hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of Section 9
hereof). Any such notice shall be given at least two Business Days prior to the
date and time of delivery specified therein.
2. The Company and DKB understand that the Underwriters intend (i) to make
a public offering of the Shares as soon after (A) the Registration Statement has
become effective and (B) the parties hereto have executed and delivered this
Agreement, as in the judgment of the Representatives is advisable and (ii)
initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by DKB to the Representatives in the
case of the Underwritten Shares, on November , 1998, or at such other time on
the same or such other date, not later than the fifth Business Day thereafter,
as the Representatives and DKB may agree upon in writing or, in the case of the
Option Shares, on the date and time specified by the Representatives in the
written notice of the Underwriters' election to purchase such Option Shares. The
time and date of such payment for the Underwritten Shares is referred to herein
as the "Closing Date" and the time and date for such payment for the Option
Shares, if other than the Closing Date, is herein referred to as the "Additional
Closing Date". As used herein, the term "Business Day"
3
<PAGE> 4
means any day other than a day on which banks are permitted or required to be
closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the applicable Representatives shall request in writing not
later than two full Business Days prior to the Closing Date or the Additional
Closing Date, as the case may be, with any transfer taxes payable in connection
with the transfer to the Underwriters of the Shares duly paid. The certificates
for the Shares will be made available for inspection and packaging by the
applicable Representatives at the office of J.P. Morgan Securities Inc. set
forth above not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date or the Additional Closing Date, as the case may be.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of any amendment to the Registration Statement,
or filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act, and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for use
therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in all
material respects with the Securities Act and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amendment
or supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
4
<PAGE> 5
or necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented, if applicable, at the Closing Date
or Additional Closing Date, as the case may be, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; except that the foregoing
representations and warranties shall not apply to statements or omissions
in the Registration Statement or the Prospectus made in reliance upon and
in conformity with information relating to any Underwriter furnished to
the Company in writing by any Underwriter through the Representatives
expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act;
(d) the financial statements of the Company, and the related notes
thereto, included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the consolidated results of their operations and changes in
their consolidated cash flows for the periods specified; and said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be
stated therein;
(e) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
change, on a consolidated basis, in the capital stock or any increase
greater than $2.255 billion in the total debt of the Company or any of its
subsidiaries, or any material adverse change in or affecting the business,
prospects, condition (financial or other), stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Change"), in each case otherwise than as set forth or
contemplated in the Prospectus; and except as set forth or contemplated in
the Prospectus neither the Company nor any of its subsidiaries has entered
into any transaction or agreement (whether or not in the ordinary course
of business) material to the Company and its subsidiaries taken as a
whole;
(f) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
5
<PAGE> 6
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not result in a Material Adverse
Change.
(g) each of the subsidiaries of the Company listed on Exhibit A (the
"Principal Subsidiaries"), has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not result in a Material Adverse
Change; and all the outstanding shares of capital stock of each Principal
Subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable, and are owned by the Company, directly
or indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(h) this Agreement has been duly authorized, executed and delivered
by the Company;
(i) the Company has an authorized capitalization as set forth in the
Prospectus and such authorized capital stock conforms as to legal matters
to the description thereof set forth in the Prospectus, and all of the
outstanding shares of capital stock of the Company, have been, and after
giving effect to sale of Shares and the Conversion will be, duly
authorized, validly issued, fully-paid and non-assessable and, on or after
the Closing Date, such capital stock will not be subject to any
pre-emptive or similar rights; and, except as described in or expressly
contemplated by the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options
to acquire, or instruments convertible into or exchangeable for, any
shares of capital stock or other equity interest in the Company or any of
its subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of
the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options;
6
<PAGE> 7
(j) neither the Company nor any of its Principal Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in violation
of or in default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Principal Subsidiaries is a
party or by which it or any of them or any of their respective properties
is bound, except for violations and defaults which individually and in the
aggregate are not material to the Company and its subsidiaries taken as a
whole; the issuance of the Shares and the performance by the Company of
its obligations under this Agreement and the consummation of the
transactions contemplated herein (including the Conversion) will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of its Principal Subsidiaries is a party or by which the Company or
any of its Principal Subsidiaries is bound or to which any of the property
or assets of the Company or any of its Principal Subsidiaries is subject,
nor will any such action result in any violation of the provisions of the
Certificate of Incorporation or the By-laws of the Company or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
Principal Subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the registration of the Shares by the Company or the
consummation by the Company of the transactions contemplated by this
Agreement (including the Conversion), except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have
been obtained under the Securities Act or otherwise and as may be required
under foreign or state securities or Blue Sky Laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(k) other than as set forth or contemplated in the Prospectus, there
are no legal or governmental investigations, actions, suits or proceedings
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its subsidiaries
is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject which, if determined adversely to
the Company or any of its subsidiaries, could individually or in the
aggregate reasonably be expected to result in a Material Adverse Change;
and there are no statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or Prospectus
or to be filed
7
<PAGE> 8
as exhibits to the Registration Statement that are not described or filed
as required;
(l) no relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of
its subsidiaries on the other hand, which is required by the Securities
Act to be described in the Registration Statement and the Prospectus which
is not so described;
(m) other than as set forth or contemplated in the Prospectus, no
person has the right to require the Company to register any securities for
offering and sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission or the issue and sale of the
Shares;
(n) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(o) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act;
(p) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Stock;
(q) each of the Company and its Principal Subsidiaries owns,
possesses or has obtained all licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals, domestic
or foreign, necessary to own or lease, as the case may be, and to operate
its properties and to carry on its business as conducted as of the date
hereof, except such as would not result in a Material Adverse Change;
neither the Company nor any Principal Subsidiary has received any actual
notice of any proceeding relating to revocation or modification of any
such license, permit, certificate, consent, order, approval or other
authorization which, if determined adversely to the Company or any of its
Principal Subsidiaries could result in a Material Adverse Change; and each
of the Company and
8
<PAGE> 9
its Principal Subsidiaries is in compliance in all respects with all laws
and regulations relating to the conduct of its business as conducted as of
the date hereof, except where the failure to so comply would not, singly
or in the aggregate, result in a Material Adverse Change.
5. DKB represents and warrants to each Underwriter that:
(a) the Selling Stockholders are the lawful owners of 126,000,000
shares of Class B Common Stock and the Selling Stockholders have valid and
unencumbered title to all shares of Class B Common Stock owned by the
Selling Stockholders free and clear of all restrictions on transfer,
liens, encumbrances, security interests and claims, whatsoever;
(b) on the Closing Date or the Additional Closing Date, each Selling
Stockholder will have valid and unencumbered title to the Shares to be
sold on such Closing Date or the Additional Closing Date, as the case may
be, by such Selling Stockholder, free and clear of all restrictions on
transfer, liens, encumbrances, security interests and claims, whatsoever;
(c) upon payment for the Shares to be sold by the Selling
Stockholders as provided herein, delivery of such Shares, as directed by
the Underwriters, to Cede & Co. ("Cede") or such other nominee as may be
designated by Depository Trust Company ("DTC"), registration of such
Shares in the name of Cede or such other nominee and on the Company's
share registry in accordance with the Company's certificate of
incorporation, by-laws and applicable law and an indication from DTC by
book entry that such Shares have been credited to "securities accounts"
(as defined in Section 8-501 of the Uniform Commercial Code as in effect
in the State of New York (the "UCC")) of the respective Underwriters with
DTC (assuming that neither DTC nor any such Underwriter has notice of any
adverse claim (as such phrase is defined in Section 8-105 of the UCC) to
such Shares), (A) DTC shall be a "protected purchaser" of such Shares
within the meaning of Section 8-303 of the UCC, and (B) under Section 8-
501 of the UCC, each Underwriter will acquire a valid "security
entitlement" (as defined in Section 8-102 of the UCC) to the Shares being
so purchased by or on behalf of such Underwriter, and, to the extent
governed by the UCC, no action based on any "adverse claim" (as defined in
Section 8-102 of the UCC) to such Shares (or security entitlement with
respect thereto) may properly be asserted against such Underwriter with
respect to such security entitlement; it being understood that for the
purpose of this representation and warranty, DKB may assume that when such
payment, delivery, registration and crediting occur, (x) Cede is not a
9
<PAGE> 10
"securities intermediary" (as defined in Section 8-102 of the UCC), (y)
registration of such Shares in the name of Cede or another nominee
designated by DTC is effective to register such Shares in the name of DTC
for purposes of Section 8-106 (b)(2) of the UCC, and (z) DTC is a
"clearing corporation" (as defined in Section 8-102 of the UCC).
(d) this Agreement has been duly authorized, executed and delivered
by DKB;
(e) the Selling Stockholders have not taken, and will not take,
directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares pursuant to the distribution contemplated by this Agreement
and, other than as permitted by the Securities Act, the Selling
Stockholders have not distributed and will not distribute any prospectus
or other offering material in connection with the offering and sale of the
Shares;
(f) DKB has reviewed the information relating to the Selling
Stockholders contained in the Registration Statement and the Prospectus
and the information relating to the Selling Stockholders in the
Registration Statement and the Prospectus does not contain any untrue
statement of a material fact relating to the Selling Stockholders or omit
to state any fact required to be stated therein or necessary to make the
statements therein relating to the Selling Stockholders not misleading in
any material respect.
(g) the performance by DKB of this Agreement and the consummation by
the Selling Stockholders of the transactions contemplated herein
(including the Conversion) will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which any Selling Stockholder is a party or by which any
Selling Stockholder is bound or to which any of the property or assets of
any Selling Stockholder is subject, nor will any such action result in any
violation of the provisions of the organizational documents of any Selling
Stockholder or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over any Selling Stockholder or any of its respective properties; and no
consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the sale of the Shares to the Underwriters or the
consummation by any Selling Stockholder of the transactions contemplated
by this Agreement (including the Conversion), except such
10
<PAGE> 11
consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act or otherwise
and as may be required under foreign or state securities or Blue Sky Laws
in connection with the purchase and distribution of the Shares by the
Underwriters;
(h) certificates for the 126,000,000 shares of Class B Common Stock
owned by the Selling Stockholders are being held by The Dai-Ichi Kangyo
Trust Company of New York in New York City for the purpose of effecting
the Conversion and delivering the Shares to be sold by the Selling
Stockholders under this Agreement (including the Option Shares).
6. The Company covenants and agrees with each of the several Underwriters
as follows:
(a) to use its best efforts to cause the Registration Statement to
become effective at the earliest possible time and, if required, to file
the final Prospectus with the Commission within the time periods specified
by Rule 424(b) and Rule 430A under the Securities Act and to file promptly
all reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Shares; and to furnish copies
of the Prospectus to the Underwriters in New York City prior to 10:00
a.m., New York City time, on the Business Day next succeeding the date of
this Agreement in such quantities as the Representatives may reasonably
request;
(b) to deliver, at the expense of the Company, to the
Representatives six signed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits thereto and, upon request, documents incorporated by reference
therein, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto,
in each case without exhibits, but including, upon request, the documents
incorporated by reference therein and, during the period mentioned in
paragraph (e) below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and, upon
request, documents incorporated by reference therein as the
Representatives may reasonably request;
11
<PAGE> 12
(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the
Registration Statement becomes effective, to furnish to the
Representatives a copy of the proposed amendment or supplement for review
and not to file such proposed amendment or supplement to which the
Representatives reasonably object;
(d) to advise the Representatives promptly, and, upon request, to
confirm such advice in writing (i) when the Registration Statement has
become effective, (ii) when any amendment to the Registration Statement
has been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof, (iv) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (vi) of the occurrence of
any event, within the period referenced in paragraph (e) below, as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, and (vii) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best
efforts to prevent the issuance of any such stop order, or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus, or of any order suspending any such qualification of the
Shares, or notification of any such order thereof and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to be
delivered in connection with sales by the Underwriters or any dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the
12
<PAGE> 13
Company if prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering and sale of the Shares,
and, at the expense of the Underwriters if subsequent to such nine month
period, to the Underwriters and to the dealers (whose names and addresses
the Representatives will furnish to the Company) to which Shares may have
been sold by the Representatives on behalf of the Underwriters and to any
other dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives
shall reasonably request and to continue such qualification in effect so
long as reasonably required for distribution of the Shares; provided that
the Company shall not be required to (i) file a general consent to service
of process, (ii) subject itself to taxation or (iii) qualify as a foreign
corporation in any jurisdiction in which it is not otherwise required to
do so;
(g) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter
of the Company occurring after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder;
(h) during a period of two years after the effective date of the
Registration Statement, to furnish to the Representatives copies of all
reports or other communications (financial or other) furnished to holders
of the Shares, and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange;
(i) for a period of 180 days after the date of the initial public
offering of the Shares not to (i) offer, sell, contract to sell, or
otherwise dispose of, directly or indirectly, any securities of the
Company which are substantially similar to shares of Class A Common Stock,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive Class A Common
Stock or any such substantially similar securities or (ii) enter into any
swap, option, future, forward or other agreement that transfers, in whole
or in part, the economic consequence of ownership of the Class A Common
Stock or any
13
<PAGE> 14
such substantially similar securities, without the prior written consent
of J.P. Morgan Securities Inc., other than the Shares to be sold hereunder
or any securities issued pursuant to existing employee stock option or
restricted stock plans;
(j) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be
paid all costs and expenses incident to the performance of its obligations
hereunder, including without limiting the generality of the foregoing, all
costs and expenses (i) incident to the preparation, issuance, execution
and delivery of the Shares, (ii) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement, the
Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in
connection with the registration or qualification of the Shares under the
laws of such jurisdictions as the Representatives may designate (including
fees of counsel for the Underwriters and its disbursements), (iv) incurred
in connection with the listing of the Shares on the New York Stock
Exchange, (v) related to the filing with, and clearance of the offering
by, the National Association of Securities Dealers, Inc. (the "NASD"),
(vi) in connection with the printing and delivery of this Agreement, any
dealer agreements, any Blue Sky Memoranda and the furnishing to the
Underwriters and dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein provided, (vii) any
expenses incurred by the Company in connection with a "road show"
presentation to potential investors, (viii) the cost of preparing stock
certificates and (ix) the cost and charges of any transfer agent and any
registrar; provided, that, it is understood, however, that, except as
provided in this Section, and Sections 9 and 12 hereof, the Underwriters
will pay all of their own costs and expenses, including the fees of their
counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make;
(k) to take or cause to be taken all actions necessary to consummate
the Conversion;
(l) not to issue any shares of Class B Common Stock in the future;
and
(m) to propose at the regularly scheduled stockholders' meeting of
the Company held in 1999 or 2000, an amendment to the Certificate of
Incorporation of the Company which would remove from such Certificate
14
<PAGE> 15
of Incorporation the authorization for the issuance of Class B Common
Stock.
7. DKB covenants and agrees with the several Underwriters as follows:
(a) DKB will do or perform or cause to be done or performed all
things required to be done or performed by the Selling Stockholders
(including consummating the Conversion) on or prior to the Closing Date or
the Additional Closing Date, as the case may be, to satisfy all conditions
precedent to the delivery of the Shares pursuant to this Agreement;
(b) DKB will advise the Underwriters promptly, and if requested by
the Underwriters, will confirm such advice in writing, within the period
of time referred to in Section 6(e) hereof, of any change in information
relating to any Selling Stockholder that suggests that any statement
relating to any Selling Stockholder made in the Registration Statement or
the Prospectus (as then amended or supplemented, if amended or
supplemented) is or may be untrue in any material respect or that the
Registration Statement or Prospectus (as then amended or supplemented, if
amended or supplemented) omits or may omit to state a material fact or a
fact necessary to be stated therein in order to make the statements
therein relating to any Selling Stockholder not misleading in any material
respect.
(c) DKB agrees to pay or cause to be paid all taxes, if any, on the
transfer and sale of the Shares being sold by the Selling Stockholders.
8. The several obligations of the Underwriters hereunder to purchase the
Shares on the Closing Date or the Additional Closing Date, as the case may be,
are subject to the performance by the Company and DKB of their respective
obligations hereunder and to the following additional conditions:
(a) the Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed under the Securities Act,
such post-effective amendment shall have become effective) not later than
5:00 P.M., New York City time, on the date hereof; and no stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; the
Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Securities Act and in accordance with
Section 5(a) hereof; and all requests for additional information shall
have been complied with to the satisfaction of the Representatives;
15
<PAGE> 16
(b) the representations and warranties of the Company contained
herein that are qualified as to materiality shall be true and correct on
and as of the Closing Date or the Additional Closing Date, as the case may
be, and those that are not qualified as to materiality shall be true and
correct in all material respects on and as of the Closing Date and the
Additional Closing Date, as the case may be, in each case with the same
force and effect as though made on and as of the Closing Date or
Additional Closing Date, as the case may be, and the Company shall have
complied in all material respects with all agreements and all conditions
required on its part to be performed or satisfied hereunder on or prior to
the Closing Date or the Additional Closing Date, as the case may be;
(c) the representations and warranties of DKB contained herein shall
be true and correct on and as of the Closing Date or the Additional
Closing Date, as the case may be, in each case with the same force and
effect as though made on and as of the Closing Date or the Additional
Closing Date, as the case may be, and the Selling Stockholders shall have
complied with all agreements and all conditions required on their part to
be performed or satisfied hereunder at or prior to the Closing Date or the
Additional Closing Date, as the case may be;
(d) since the respective dates as of which information is given in
the Prospectus there shall not have been any change, on a consolidated
basis, in the capital stock or increase greater than $2.255 billion in the
total debt of the Company or any of its subsidiaries or any Material
Adverse Change, otherwise than as set forth or contemplated in the
Prospectus, the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares on the Closing Date or the Additional
Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, (i) a certificate
of an executive officer of the Company, with specific knowledge about the
Company's financial matters, satisfactory to the Representatives to the
effect set forth in subsections (a) and (b) of this Section and to the
further effect that there has not occurred any Material Adverse Change
from that set forth or contemplated in the Registration Statement and (ii)
a certificate from an executive officer of DKB satisfactory to the
Representatives to the effect set forth in subsection (c) of this Section;
16
<PAGE> 17
(f) Schulte Roth & Zabel LLP, counsel for the Company, shall have
furnished to the Representatives their written opinion and statement, as
applicable, dated the Closing Date or the Additional Closing Date, as the
case may be, in form and substance reasonably satisfactory to the
Representatives and addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(ii) all of the outstanding shares of capital stock of the
Company (after giving effect to the sale of the Shares and the
Conversion), have been duly authorized and are validly issued, fully
paid and non-assessable and such capital stock is not subject to any
preemptive or similar rights;
(iii) the statements in or incorporated by reference in the
Prospectus under "Compensation of Directors and Executive Officers
--Long-Term Incentives; --Benefit Plans; --Employment Agreements";
"Relationship with DKB--Regulatory Compliance Agreement;
--Registration Rights Agreement; --Tax Allocation Agreement";
"Description of Capital Stock"; and "Certain United States Tax
Consequences to Non-United States Holders" and in the Registration
Statement in Item 15, insofar as such statements purport to
constitute a summary of the terms of the Class A Common Stock, legal
matters, documents or proceedings referred to therein, constitute
accurate summaries of the matters described therein in all material
respects;
(iv) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (other than the financial statements and related schedules
and other financial and statistical data included or incorporated by
reference therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Securities Act;
(v) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required to be obtained or made by the Company for
the issuance of the Shares, the sale of the Shares to the
Underwriters or the consummation of the other transactions
contemplated by this Agreement (including the Conversion),
17
<PAGE> 18
except such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act or otherwise and as may be required under foreign or
state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters;
(vi) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company"
as such term is defined in the Investment Company Act;
(vii) upon payment pursuant to the Underwriting Agreement for
the Shares to be sold by the Selling Stockholders pursuant thereto,
delivery of such Shares, as directed by the Underwriters, to Cede or
such other nominee as may be designated by DTC, registration of such
Shares in the name of Cede or such other nominee as may be
designated by DTC on the Company's share registry in accordance with
the Company's certificate of incorporation, bylaws and applicable
law and an indication from DTC by book entry that such Shares have
been credited to "securities accounts" (as defined in Section 8-501
of the UCC) of the respective Underwriters with DTC (assuming that
neither DTC nor any such Underwriter has notice of any adverse claim
(as such phrase is defined in Section 8-105 of the UCC) to such
Shares): (A) DTC shall be a "protected purchaser" of such Shares
within the meaning of Section 8-303 of the UCC; and (B) under
Section 8- 501 of the UCC, each Underwriter will acquire a valid
"security entitlement" (as defined in Section 8-102 of the UCC) to
the Shares being so purchased by or on behalf of such Underwriter,
and, to the extent governed by the UCC, no action based on any
"adverse claim" (as defined in Section 8-102 of the UCC) to such
Shares (or security entitlement with respect thereto) may properly
be asserted against such Underwriter with respect to such security
entitlement; it being understood that for the purpose of this
opinion, such counsel has assumed without independent verification,
that the UCC is the law applicable to the sale of the Shares and
that when such payment, delivery, registration and crediting occur,
(x) Cede is not a "securities intermediary" (as defined in Section
8-102 of the UCC), (y) registration of such Shares in the name of
Cede or another nominee designated by DTC is effective to register
such Shares in the name of DTC for purposes of Section 8-106 (b)(2)
of the UCC and (z) DTC is a "clearing corporation" (as defined in
Section 8-102 of the UCC);
18
<PAGE> 19
and such counsel shall state that it has no reason to believe that
(other than the financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein, as to which such counsel need express no belief) the
Registration Statement and the Prospectus included therein at the
time the Registration Statement became effective contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as
amended or supplemented, if applicable, contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(g) Ernest D. Stein, Executive Vice President and General Counsel
for the Company, shall have furnished to the Representatives his written
opinion and statement, as applicable, dated the Closing Date or the
Additional Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(iii) each of the Company's Principal Subsidiaries has been
duly incorporated and is validly existing as a corporation under the
laws of its jurisdiction of incorporation with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties, or conducts any business, so as to require
such qualification, other than where the failure to be so qualified
and in good standing would not have a material adverse
19
<PAGE> 20
effect on the Company and its subsidiaries taken as a whole; and all
of the outstanding shares of capital stock of each Principal
Subsidiary have been duly and validly authorized and issued, are
fully paid and non-assessable, and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
and claims;
(iv) to such counsel's knowledge and other than as set forth
or contemplated in the Prospectus, there are no legal or
governmental proceedings pending, threatened or contemplated to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, could individually or in the aggregate reasonably be
expected to result in a Material Adverse Change;
(v) such counsel shall state that he has no reason to believe
that (other than the financial statements and related schedules and
other financial and statistical data included or incorporated by
reference therein, as to which such counsel need express no belief)
the Registration Statement and the Prospectus included therein at
the time the Registration Statement became effective contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as
amended or supplemented, if applicable, contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(vi) the performance by the Company of its obligations under
this Agreement and the consummation of the transactions contemplated
herein (including the Conversion) will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to
which the Company or any of its Principal Subsidiaries is a party or
by which the Company or any of its Principal Subsidiaries is bound
or to which any of the property or assets of the Company or any of
its Principal Subsidiaries is subject (other than, in each case, any
documentation relating to a transaction in which the Company or a
Principal Subsidiary is a lender), nor will any such action result
in any violation of the provisions of the
20
<PAGE> 21
Certificate of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, its Principal Subsidiaries or any of their respective
properties;
(vii) the documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by
the Company prior to the Closing Date or the Additional Closing
Date, as the case may be, (other than the financial statements and
related schedules and other financial and statistical data included
therein, as to which such counsel need not express an opinion), when
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(viii) each of the Company and its Principal Subsidiaries
owns, possesses or has obtained all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has
made all declarations and filings with, all federal, state and local
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, within the United States, necessary to
own or lease, as the case may be, and to operate its properties and
to carry on its business as conducted as of the date hereof, except
such as would not result in a Material Adverse Change, and, to the
knowledge of such counsel, neither the Company nor any such
Principal Subsidiary has received any actual notice of any
proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization which, if determined adversely to the Company or any
of its Principal Subsidiaries could result in a Material Adverse
Change; and
(ix) the description in the Registration Statement and
Prospectus of statutes and other documents is accurate and fairly
presents the information required to be shown, and such counsel does
not know of any legal or governmental proceedings required to be
described in the Registration Statement or Prospectus which are not
described as required, or of any statutes, contracts or documents of
a character required to be described in the Registration Statement
or the Prospectus, or to be filed as exhibits
21
<PAGE> 22
to the Registration Statement which are not described and filed as
required.
In rendering the opinions set forth in paragraphs (e) and (f) of this
Section, such counsel may rely (A) as to matters involving the application of
laws other than the laws of the United States and the states of New York and the
General Corporation Law of the State of Delaware, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to Underwriters'
counsel, familiar with the applicable laws and (B) as to matters of fact, to the
extent such counsel deems proper, on certificates of responsible officers of the
Company and its subsidiaries and, in the case of Ernest D. Stein, certificates
or other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the Company and
its Principal Subsidiaries. The opinions of such counsel for the Company shall
state that the opinions of any such other counsel upon which they relied is in
form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to the
matters to be covered in subparagraph (iv) of paragraph (f) and subparagraphs
(v) and (vii) of paragraph (g) above counsel may state their opinion and belief
is based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto (other
than, in the case of Schulte Roth & Zabel LLP, the documents incorporated by
reference therein) and review and discussion of the contents thereof (including
the documents incorporated by reference therein) but is without independent
check or verification except as specified.
(h) Nishimura & Partners, counsel for DKB, shall have furnished to
the Representatives their written opinion or opinions, dated the Closing
Date or the Additional Closing Date, as the case may be, in form and
substance satisfactory to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by DKB;
(ii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required to be obtained or made by DKB for the
sale of the Shares to the Underwriters or the consummation of the
other transactions contemplated by this Agreement (including the
Conversion), except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as have been
obtained under the Securities Act or otherwise and as may be
22
<PAGE> 23
required under foreign or state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters;
(iii) the performance by DKB of its obligations under this
Agreement and the consummation by DKB of the transactions
contemplated herein (including the Conversion) will not result in
any violation of the provisions of the organizational documents of
DKB or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over DKB or any of its properties;
The opinions of Schulte Roth & Zabel LLP, Ernest D. Stein and Nishimura &
Partners shall be rendered to the Underwriters at the request of the Company or
DKB, as the case may be, and shall so state therein.
(i) on the effective date of the Registration Statement and the
effective date of the most recently filed post-effective amendment to the
Registration Statement and also on the Closing Date or Additional Closing
Date, as the case may be, KPMG Peat Marwick LLP shall have furnished to
the Representatives letters, dated the respective dates of delivery
thereof, in form and substance reasonably satisfactory to the
Representatives and addressed to the Representatives, containing
statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
(j) the Representatives shall have received on and as of the Closing
Date or Additional Closing Date, as the case may be, an opinion of Davis
Polk & Wardwell, counsel to the Underwriters, with respect to the Shares,
the Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(k) on or prior to the Closing Date or Additional Closing Date, as
the case may be, the Company and each Selling Stockholder shall have
furnished to the Representatives such further certificates and documents
as the Representatives shall reasonably request;
(l) The "lock-up" agreements between the Representatives and the
Company, the Selling Stockholders and certain officers and directors
23
<PAGE> 24
of the Company relating to sales and certain other dispositions of shares
of Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date or
Additional Closing Date, as the case may be; and
(m) the Conversion shall have been consummated.
9. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by 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, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein;
provided, that, the Company shall not be liable to any Underwriter under the
indemnity agreement in this paragraph with respect to any preliminary prospectus
to the extent that any such loss, claim, damage or liability of such Underwriter
results from the fact that such Underwriter sold Shares to a person as to whom
it shall be established that there was not sent or given, at or prior to written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented in any case where such delivery is required by the Act
if the Company previously furnished copies thereof in the quantity requested in
accordance with Section 5(b) hereof to such Underwriter and if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (or in the
Prospectus as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto).
DKB agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation the reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted) caused by any untrue
statement or
24
<PAGE> 25
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to any
Selling Stockholder furnished in writing by or on behalf of such Selling
Stockholder for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus; provided, that, DKB shall
not be liable to any Underwriter under the indemnity agreement in this paragraph
with respect to any preliminary prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact that such
Underwriter sold Shares to a person as to whom it shall be established that
there was not sent or given, at or prior to written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented in
any case where such delivery is required by the Act if the Company previously
furnished copies thereof in the quantity requested in accordance with Section
5(b) hereof to such Underwriter and if such untrue statement or omission or
alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (or in the Prospectus as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers who sign the Registration
Statement, DKB and each person who controls the Company or DKB within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Company or DKB, as the
case may be, to each Underwriter, but only with reference to information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to any of the three
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel
25
<PAGE> 26
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any one firm of local counsel) (a) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (b) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section and (c) for DKB and all persons, if any, who control DKB
within the meaning of either such Section, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for the
Underwriters and such control persons of the Underwriters shall be designated in
writing by J.P. Morgan Securities Inc., any such separate firm for the Company,
its directors, officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company and any
such separate firm for DKB and such control persons of DKB shall be designated
by DKB. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
26
<PAGE> 27
If the indemnification provided for in the first, second or third
paragraphs of this Section 9 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnifying Person on the one hand and the
Indemnified Person on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportions as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company or
DKB, as the case may be, on the one hand and the Underwriters on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by DKB shall be deemed to be the
aggregate net proceeds from the offering of the Shares (before deducting
expenses) received by the Selling Stockholders, the relative benefits received
by the Company shall be deemed to be the same amount, and the relative benefits
received by the Underwriters shall be deemed to be the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth
in the table on the cover of the Prospectus. The relative fault of the Company
or DKB, as the case may be, on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, DKB and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise
27
<PAGE> 28
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to the respective number of Shares set forth
opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 9 and
the representations and warranties of the Company and DKB set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter, by or on behalf of
DKB or any person controlling DKB or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and (iii)
acceptance of and payment for any of the Shares.
10. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (or, in the case of the Option Shares, prior to the
Additional Closing Date) (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange or the NASD, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Shares being delivered at
the Closing Date or the Additional Closing Date, as the case may be, on the
terms and in the manner contemplated in the Prospectus.
11. This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any
post-effective amendment) by the Commission.
28
<PAGE> 29
If on the Closing Date or the Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
obligated to purchase on such date shall be obligated severally in the
proportions that the number of Shares set forth opposite their respective names
in Schedule I bears to the aggregate number of Underwritten Shares set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Representatives may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that
any Underwriter has agreed to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by an amount in excess of one-tenth of such number of
Shares without the written consent of such Underwriter. If on the Closing Date
or the Additional Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Shares which it or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Shares to be purchased on such date, and arrangements
satisfactory to the Representatives, DKB and the Company for the purchase of
such Shares are not made within 36 hours after such default, this Agreement (or
the obligations of the several Underwriters to purchase the Option Shares, as
the case may be) shall terminate without liability on the part of any
non-defaulting Underwriter, DKB or the Company. In any such case, the
Representatives, DKB or the Company shall have the right to postpone the Closing
Date (or, in the case of the Option Shares, the Additional Closing Date), but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
12. If this Agreement shall be terminated pursuant to Section 10 or 11
hereof, the Company shall not be under any liability to any Underwriter, except
as provided in Sections 6(j) and 9 hereof, but, if for any other reason any
Shares are not delivered by the Selling Stockholders as provided herein, the
Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the reasonable fees and expenses of its
counsel) reasonably incurred by the Underwriters in connection with this
Agreement or the offering contemplated hereunder.
29
<PAGE> 30
13. This Agreement shall be binding upon the signatories hereto and shall
inure to the benefit of the Company and its directors and officers who signed
the Registration Statement, DKB, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
14. Any action by the Underwriters hereunder may be taken by J.P. Morgan
Securities Inc. alone on behalf of the Representatives or Underwriters, and any
such action taken by J.P. Morgan Securities Inc. alone shall be binding upon the
Representatives or Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be given to the Representatives, c/o J.P. Morgan Securities
Inc., 60 Wall Street, New York, New York 10260 (telefax: 212-648-5705);
Attention: Syndicate Department. Notices to the Company shall be given to it at
1211 Avenue of the Americas, 21st Floor, New York, New York 10036, (telefax:
212-536-1912); Attention: Chief Financial Officer. Notices to DKB shall be given
to: CIT Office, International Planning & Coordination Division; The Dai-Ichi
Kangyo Bank, Limited; 1-5, Uchisaiwaicho, 1-chome; Chiyoda-ku, Tokyo 100-0011;
Japan (telefax: 011-813-3596-2259); Attention: Masatoshi Muranaka.
15. This Agreement may be signed in counterparts, each of which shall be
an original and both of which together shall constitute one and the same
instrument.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
30
<PAGE> 31
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
THE CIT GROUP, INC.
By:
---------------------------------------------
Name: Albert R. Gamper, Jr.
Title: President
Chief Executive Officer
THE DAI-ICHI KANGYO BANK,
LIMITED
By:
---------------------------------------------
Name:
Title:
Accepted: November , 1998
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Warburg Dillon Read LLC
Acting severally on behalf
of themselves and the
several Underwriters listed in
Schedule I hereto.
By: J.P. Morgan Securities Inc.
By:
------------------------------
Name:
Title:
31
<PAGE> 32
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITTEN
SHARES
UNDERWRITER TO BE PURCHASED
- ----------- ---------------
<S> <C>
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
Warburg Dillon Read LLC
CIBC Oppenheimer Corp.
Donaldson, Lufkin & Jenrette Securities Corporation
Fox-Pitt, Kelton Inc.
Wheat First Securities, Inc.
Chase Securities Inc.
Chatsworth Securities, LLC
Dresdner Kleinwort Benson North America Llc
Legg Mason Wood Walker, Incorporated
Nesbitt Burns Securities Inc.
RBC Dominion Securities Corporation
Charles Schwab & Co., Inc.
Scotia Capital Markets (USA) Inc.
Total
</TABLE>
<PAGE> 33
EXHIBIT A
The CIT Group, Inc. (NJ),
The CIT Group/Credit Finance, Inc.,
The CIT Group/Business Credit, Inc.,
The CIT Group/Equipment Financing, Inc.,
The CIT Group/Commercial Services, Inc.,
The CIT Group/Capital Finance, Inc.,
The CIT Group/Consumer Finance, Inc.,
The CIT Group/Consumer Finance, Inc. (NY),
The CIT Group/Sales Financing, Inc.
2
<PAGE> 1
Exhibit 5
[SCHULTE ROTH & ZABEL LLP]
November 13, 1998
The CIT Group, Inc.
1211 Avenue of the Americas
New York, NY 10036
Dear Sirs:
We have acted as special counsel to The CIT Group, Inc., a
Delaware corporation (the "Company"), in connection with the preparation and
filing by the Company with the Securities and Exchange Commission (the
"Commission") of a Registration Statement on Form S-3, Commission file number
333-65697 (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "Securities Act"), relating to the offer and sale of up to
56,350,000 shares (the "Shares") of Class A Common Stock, par value $.01 per
share, of the Company (the "Class A Common Stock"). The Shares are to be
purchased by certain underwriters and offered for sale to the public pursuant to
the terms of an Underwriting Agreement, the form of which will be filed as an
exhibit to the Registration Statement.
In our capacity as special counsel to the Company in
connection with the preparation and filing by the Company of the Registration
Statement and the offer and sale of Shares contemplated thereby, we have
examined originals, telecopies or copies, certified or otherwise identified to
our satisfaction, of such records of the Company and all such agreements,
certificates of public officials, certificates of officers or representatives of
the Company and others, and such other documents, certificates and corporate or
other records as we have deemed necessary or appropriate as a basis for this
opinion.
In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons signing or delivering any
instrument, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such latter
documents.
<PAGE> 2
The CIT Group, Inc.
Page 2
As to any facts material to this opinion that were not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Company and others.
We are attorneys admitted to practice in the State of New
York. The opinion set forth below is limited to the Delaware General Corporation
Law and the federal laws. Paul N. Roth, a member of this firm, is a director of
the Company.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares are
duly authorized by the Company and, upon payment and delivery in accordance with
the Underwriting Agreement, will be validly issued, fully paid and
nonassessable.
We have reviewed the discussion contained under the heading
"Certain United States Tax Consequences to Non-United States Holders" in the
Prospectus forming a part of the Registration Statement. In our opinion, such
discussion sets forth the material U.S. federal income tax considerations
applicable generally to non-U.S. holders of the Shares and to such holders'
ownership and disposition of the Shares.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the
heading "Legal Matters" in the Prospectus which forms a part thereof. In giving
such consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
<PAGE> 1
Exhibit 23.1
Independent Auditors' Consent
The Board of Directors
The CIT Group, Inc.:
We consent to the use of our report dated January 28, 1998, relating to the
consolidated balance sheets of The CIT Group, Inc. and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of income,
changes in stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1997, included in or incorporated by
reference in this Post-Effective Amendment No. 1 to this Registration Statement
on Form S-3 of The CIT Group, Inc., which report appears in and is incorporated
by reference in this Post-Effective Amendment No. 1 to this Registration
Statement and to the reference to our firm under the heading "Experts" in the
Registration Statement.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Short Hills, New Jersey
November 13, 1998
