<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 15, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
INGERSOLL-RAND COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NEW JERSEY 13-5156640
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
200 CHESTNUT RIDGE ROAD
WOODCLIFF LAKE, NEW JERSEY 07675
(201) 573-0123
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
PRINCIPAL EXECUTIVE OFFICES)
------------------------
PATRICIA NACHTIGAL, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
INGERSOLL-RAND COMPANY
P.O. BOX 8738
WOODCLIFF LAKE, NEW JERSEY 07675
(201) 573-0123
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPY TO:
JAMES M. COTTER, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 455-2000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
------------------------
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, please check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement 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: / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C>
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF OFFERING REGISTRATION
SECURITIES TO BE REGISTERED PRICE(1) FEE
- ----------------------------------------------------------------------------------------------
Debt Securities............................................. $750,000,000 $258,621
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated for the sole purpose of computing the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JUNE 15, 1995
PROSPECTUS
$750,000,000
INGERSOLL-RAND COMPANY
DEBT SECURITIES
------------------------
Ingersoll-Rand Company ("Ingersoll-Rand" or the "Company") from time to
time may sell its debt securities (the "Debt Securities"), in one or more
series, up to an aggregate principal amount of $750,000,000, on terms to be
determined by market conditions at the time of sale.
With respect to each series of Debt Securities, a supplement to this
Prospectus will be delivered (the "Prospectus Supplement") together with this
Prospectus setting forth the terms of such Debt Securities, including, where
applicable, the specific designation, aggregate principal amount, denominations,
maturity, interest rate (which may be fixed or variable) and time of payment of
interest, if any, coin or currency in which principal, premium, if any, and
interest, if any, will be payable, any terms for redemption, any terms for
sinking fund payments, the initial public offering price, the names of, the
principal amounts to be purchased by, and the compensation of underwriters,
dealers or agents, if any, any listing of the Debt Securities on a securities
exchange and the other terms in connection with the offering and sale of such
Debt Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The Debt Securities may be sold directly to purchasers or to or through
underwriters, dealers or agents. If any underwriters, dealers or agents are
involved in the sale of any Debt Securities, their names and any applicable fee,
commission or discount arrangements will be set forth in the Prospectus
Supplement. The net proceeds to the Company from sales of Debt Securities will
be set forth in the Prospectus Supplement and will be the purchase price of such
Debt Securities less attributable issuance expenses, including underwriters',
dealers' or agents' compensation arrangements. See "Plan of Distribution" for
indemnification arrangements for underwriters, dealers and agents.
------------------------
The date of this Prospectus is , 1995.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company can be inspected and copied at the Commission's
public reference facilities at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's regional offices located
at Seven World Trade Center, Suite 1300, New York, New York 10048, and the
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Common Stock of the Company is listed on the New
York Stock Exchange, Inc., and reports, proxy statements and other information
concerning the Company may be inspected at the office of such Exchange, 20 Broad
Street, New York, N.Y. 10005. This Prospectus does not contain all information
set forth in the Registration Statement (of which this Prospectus is a part) and
the exhibits thereto which the Company has filed with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), and to which
reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1994, the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1995 and the Company's Current Report on Form 8-K dated June 5, 1995,
as amended, are incorporated herein by reference and made a part of this
Prospectus, and all documents filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of
this Prospectus but prior to the termination of the offering of the Debt
Securities shall be deemed to be incorporated herein by reference and made a
part of this Prospectus from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus and any amendment or supplement hereto to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus or any
such amendment or supplement.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, on the written or oral
request of any such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents).
Requests should be directed to Ingersoll-Rand Company, P.O. Box 8738, Woodcliff
Lake, New Jersey 07675, Attention: R.G. Heller, Secretary (telephone
201-573-0123).
THE COMPANY
Ingersoll-Rand manufactures and sells primarily non-electrical machinery
and equipment, including air compression systems, air tools, pumps, antifriction
bearings, pulp processing machinery, construction equipment, door hardware and
drilling equipment. The products manufactured by Ingersoll-Rand and its
subsidiaries and affiliates are sold principally under the name Ingersoll-Rand
and also under other names. The manufacturing and sales operations of
Ingersoll-Rand are conducted throughout the world.
Ingersoll-Rand was organized in 1905 under the laws of the State of New
Jersey as a consolidation of IngersollSergeant Drill Company and the Rand Drill
Company, whose businesses were established in the early 1870s. The Company's
principal executive offices are at 200 Chestnut Ridge Road, Woodcliff Lake, New
Jersey 07675 (telephone 201-573-0123). Unless the context otherwise requires,
the terms "Ingersoll-Rand" and "Company" refer to Ingersoll-Rand Company and its
consolidated subsidiaries.
On May 31, 1995, the Company completed the acquisition of Clark Equipment
Company ("Clark") in a cash merger transaction. Clark's business is the design,
manufacture and sale of skid steer loaders, asphalt paving equipment, and axles
and transmissions for off-highway equipment. Through its Club Car Inc. ("Club
Car") subsidiary, Clark is one of the largest manufacturers of golf cars and
light utility vehicles.
2
<PAGE> 4
USE OF PROCEEDS
The Company intends to apply the net proceeds from the sale of the Debt
Securities to which this Prospectus relates to its general funds to be used by
its management for capital expenditures and general corporate purposes,
including the repayment of debt incurred by the Company in connection with the
acquisition of Clark. Funds not required immediately for such purposes may be
invested in short-term obligations or used to reduce the future level of the
Company's commercial paper obligations.
SELECTED FINANCIAL INFORMATION
The following table sets forth certain additional financial information for
the Company for the three month period ended March 31, 1995 and the years ended
December 31, 1994, 1993 and 1992 and is qualified in its entirety by the
detailed information and financial statements included in the documents
incorporated herein by reference. See "Incorporation of Certain Documents by
Reference" herein.
<TABLE>
<CAPTION>
THREE MONTH
PERIOD ENDED YEAR ENDED DECEMBER 31,
MARCH 31, ------------------------------------
1995 1994 1993 1992
------------ ---------- ---------- ----------
(THOUSANDS OF DOLLARS (EXCEPT PER SHARE DATA))
<S> <C> <C> <C> <C>
Net sales...................................... $1,185,585 $4,507,470 $4,021,071 $3,783,787
Cost of goods sold............................. 893,111 3,377,049 3,016,690 2,881,861
Administrative, selling and service engineering
expenses..................................... 203,277 753,414 707,867 646,687
Restructure of operations -- charge............ -- -- (5,000) (80,000)
---------- ---------- ---------- ----------
Operating income............................... 89,197 377,007 291,514 175,239
Interest expense............................... (8,964) (43,751) (51,955) (54,129)
Other income (expense), net.................... (5,996) (14,734) (7,536) (734)
Dresser-Rand income............................ 300 24,600 33,090 27,630
Ingersoll-Dresser Pump Company minority
interest..................................... (2,245) (13,182) (11,589) 34,988
---------- ---------- ---------- ----------
Earnings before income taxes, extraordinary
item and effect of accounting changes........ 72,292 329,940 253,524 182,994
Provision for income taxes..................... 26,025 118,800 90,000 67,400
---------- ---------- ---------- ----------
Earnings before extraordinary item and effect
of accounting changes........................ 46,267 211,140 163,524 115,594
Effect of accounting changes:
Postemployment benefits (net of income
tax benefit).............................. -- -- (21,000) --
Postretirement benefits other than pensions
(net of income tax benefit)............... -- -- -- (332,000)
Income taxes................................. -- -- -- (18,000)
---------- ---------- ---------- ----------
Net earnings (loss)............................ $ 46,267 $ 211,140 $ 142,524 $ (234,406)
========== ========== ========== ==========
Earnings per share of common stock:
Earnings before effect of accounting
changes................................... $ 0.44 $ 2.00 $ 1.56 $ 1.11
Effect of accounting changes:
Postemployment benefits................... -- -- (0.20) --
Postretirement benefits other than
pensions................................ -- -- -- (3.19)
Income taxes.............................. -- -- -- (0.17)
---------- ---------- ---------- ----------
Net earnings (loss) per share........ $ 0.44 $ 2.00 $ 1.36 $ (2.25)
========== ========== ========== ==========
</TABLE>
3
<PAGE> 5
SELECTED UNAUDITED PRO FORMA FINANCIAL DATA
The following selected unaudited pro forma income statement data for the
year ended December 31, 1994 and for the three months ended March 31, 1995 gives
effect to the acquisition of Clark as if it had occurred at the beginning of the
periods presented. The unaudited pro forma balance sheet data gives effect to
the acquisition of Clark as if it had occurred on March 31, 1995. The pro forma
data presented below should be read in conjunction with the Company's
Consolidated Financial Statements and Pro Forma Condensed Consolidated Financial
Information and accompanying assumptions incorporated by reference herein or
included elsewhere herein. Such data is not necessarily indicative of the
results of operations that would have been achieved had the transactions
described above occurred on the dates indicated or that may be expected to occur
in the future as a result of such transactions.
PRO FORMA CONDENSED CONSOLIDATED INCOME STATEMENTS(1)
<TABLE>
<CAPTION>
THREE MONTH PERIOD ENDED MARCH 31, 1995 YEAR ENDED DECEMBER 31, 1994
---------------------------------------------------- ----------------------------------------------------
INGERSOLL-RAND CLARK HISTORICAL INGERSOLL-RAND INGERSOLL-RAND CLARK HISTORICAL INGERSOLL-RAND
HISTORICAL AND PRO FORMA PRO FORMA HISTORICAL AND PRO FORMA PRO FORMA
AMOUNTS ADJUSTMENTS(2)(3) AMOUNTS AMOUNTS ADJUSTMENTS(2)(3) AMOUNTS
-------------- ------------------ -------------- -------------- ------------------ --------------
(THOUSANDS OF DOLLARS (EXCEPT RATIO AND PER SHARE DATA))
<S> <C> <C> <C> <C> <C> <C>
Net sales........... $ 1,185,585 $361,929 $ 1,547,514 $ 4,507,470 $1,182,008 $ 5,689,478
Cost of goods
sold.............. 893,111 292,831 1,185,942 3,377,049 958,208 4,335,257
Administrative,
selling and
service
engineering
expenses.......... 203,277 40,611 243,888 753,414 140,037 893,451
---------- ------- ---------- ---------- ------- ----------
Operating income.... 89,197 28,487 117,684 377,007 83,763 460,770
Interest expense.... (8,964) (23,793) (32,757) (43,751) (95,721) (139,472)
Other income
(expense), net.... (5,996) 2,743 (3,253) (14,734) 5,794 (8,940)
Dresser-Rand
income............ 300 -- 300 24,600 -- 24,600
Ingersoll-Dresser
Pump Company
minority
interest.......... (2,245) -- (2,245) (13,182) -- (13,182)
---------- ------- ---------- ---------- ------- ----------
Earnings before
taxes............. 72,292 7,437 79,729 329,940 (6,164) 323,776
Provision for income
taxes............. 26,025 4,753 30,778 118,800 6,231 125,031
---------- ------- ---------- ---------- ------- ----------
Earnings from
continuing
operations........ $ 46,267 $ 2,684 $ 48,951 $ 211,140 $ (12,395) $ 198,745
========== ======= ========== ========== ======= ==========
Earnings per common
share from
continuing
operations........ $ 0.44 $ 0.02 $ 0.46 $ 2.00 $ (0.13) $ 1.87
========== ======= ========== ========== ======= ==========
Average common
shares outstanding
for the period.... 105,566,461 999,616 106,566,077 105,458,116 999,616 106,457,732
Ratio of earnings to
fixed charges..... 5.54 2.97 5.45 2.80
</TABLE>
- ---------------
(1) Reference is made to the Company's Current Report on Form 8-K dated June 5,
1995, as amended, for the discussion of assumptions used in preparing the
pro forma presentation.
(2) Pro forma adjustments include both the Clark pro forma adjustments for Blaw
Knox Equipment Corporation, Club Car and VME Group N.V. ("VME"), where
appropriate, and the Company's pro forma adjustments for the acquisition of
Clark.
(3) Clark's historical pro forma income statement includes only the results of
its operations through the "Income from continuing operations" line. Results
of discontinued operations and gains on the sale of VME and CAPCO Automotive
Products Corporation have not been included in the pro forma information
presented.
4
<PAGE> 6
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
MARCH 31, 1995
------------------------------------------------------------------
INGERSOLL-RAND CLARK HISTORICAL AND INGERSOLL-RAND
HISTORICAL AMOUNTS PRO FORMA ADJUSTMENTS PRO FORMA AMOUNTS
------------------ --------------------- -----------------
(THOUSANDS OF DOLLARS)
<S> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents and
marketable securities............ $ 249,718 $ (36,101) $ 213,617
Accounts and notes receivable....... 986,027 188,511 1,174,538
Inventories......................... 755,820 203,495 959,315
Prepaid expenses and deferred
taxes............................ 169,063 41,964 211,027
---------- ---------- ----------
Current assets................... 2,160,628 397,869 2,558,497
Investments and advances.............. 268,853 8,957 277,810
Property, plant and equipment, net.... 980,638 259,470 1,240,108
Intangible assets, net................ 130,356 1,152,150 1,282,506
Other assets and deferred taxes....... 258,138 104,812 362,950
---------- ---------- ----------
Total Assets................ $3,798,613 $ 1,923,258 $ 5,721,871
========== ========== ==========
LIABILITIES AND EQUITY
Current Liabilities:
Loans payable....................... $ 214,357 $ 115,765(1) $ 330,122(1)
Accounts payable and accruals....... 930,834 298,336 1,229,170
---------- ---------- ----------
Current liabilities................. 1,145,191 414,101 1,559,292
Long-term debt........................ 318,226 1,072,628(1) 1,390,854(1)
Other noncurrent liabilities.......... 730,487 400,542 1,131,029
---------- ---------- ----------
Total liabilities........... 2,193,904 1,887,271 4,081,175
---------- ---------- ----------
Shareowners' equity:
Common stock........................ 218,529 -- 218,529
Capital in excess of par............ 45,175 64,532(2) 109,707(2)
Retained earnings................... 1,430,404 -- 1,430,404
---------- ---------- ----------
1,694,108 64,532 1,758,640
Less -- Treasury stock, at cost....... (53,035) 43,221(2) (9,814)(2)
-- LESOP......................... -- (71,766)(2) (71,766)(2)
-- Foreign currency
adjustments......................... (36,364) -- (36,364)
---------- ---------- ----------
Shareowners' equity................... 1,604,709 35,987 1,640,696
---------- ---------- ----------
Total liabilities and
shareowners' equity....... $3,798,613 $ 1,923,258 $ 5,721,871
========== ========== ==========
</TABLE>
- ---------------
(1) On May 31, 1995, the Company completed the acquisition of Clark at a cost of
approximately $1.5 billion, including transaction expenses. On such date,
the Company borrowed $1.5 billion under a bank credit facility to finance
the acquisition. On June 1, 1995, the Company used excess cash funds to pay
down the credit facility to $1 billion. On June 9, 1995, the Company
completed the issuance of $150 million of 6.48% debentures due June 1, 2025
and $150 million of 7.20% debentures due June 1, 2025 and used the proceeds
thereof to pay down the credit facility to $700 million. The pro forma
amounts in the pro forma condensed consolidated balance sheet reflect the
refinancing of a portion of the debt used by the Company to finance the
acquisition under its five year credit facility, to a longer term
instrument.
(2) Reflects the assumed sale of the unallocated Clark shares in the Clark
Leveraged Employee Stock Ownership Plan ("LESOP") to the Company for $86 per
share and the assumed reinvestment of these funds by the LESOP after the
acquisition in 2,993,129 shares of Company treasury stock at an assumed
price of $36 per share. In addition, 1,993,513 of these shares will remain
as unallocated shares within the LESOP and accordingly, they are reflected
as a reduction of the Company's equity in this pro forma condensed
consolidated balance sheet.
5
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for each of the years in the five year period ended December 31,
1994 and for the three month period ended March 31, 1995. For the purpose of
computing the ratios of earnings to fixed charges, earnings consist of earnings
before income taxes and fixed charges, excluding the Company's proportionate
share in the undistributed earnings (losses) of less than fifty-percent-owned
affiliates (accounted for using the equity method), minority interests and
capitalized interest. Fixed charges consist of interest (including capitalized
interest), amortization of debt discount and expense and that portion
(one-third) of rental expense deemed to be representative of an interest factor
included therein.
<TABLE>
<CAPTION>
THREE MONTH
PERIOD ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
- ------------ --------------------------------------------------------------------------------
1995 1994 1993 1992 1991 1990
- ------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
5.54(1) 5.45(1) 3.69(2) 2.45(3)(4) 3.42(3)(5) 3.89(3)
</TABLE>
- ---------------
(1) See "Selected Unaudited Pro Forma Financial Data" for information concerning
the pro forma impact of the Clark acquisition.
(2) The 1993 calculation includes the effect of the $5 million pretax charge
relating to the restructure of the Company's underground mining machinery
business. Excluding this amount, the ratio would have been 3.75.
(3) The Company's portion of the earnings and fixed charges of Dresser-Rand
Company (a joint venture formed effective January 1, 1987 with Dresser
Industries, Inc.) is included through September 30, 1992. Effective October
1, 1992, the Company's ownership interest in Dresser-Rand Company was
reduced from 50% to 49%.
(4) The 1992 calculation includes (i) the effect of the $10 million pretax
charge relating to the restructure of the Company's aerospace bearings
business and (ii) the full effect of the $70 million pretax restructure of
operations charge relating to Ingersoll-Dresser Pump Company. Excluding the
1992 restructure charges the ratio would have been 3.35.
(5) The 1991 ratio includes a $7.1 million net pretax benefit from a restructure
of operations. Excluding this amount the ratio would have been 3.34.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate. The particular terms of the Debt Securities offered by any
Prospectus Supplement (the "Offered Debt Securities") and the extent, if any, to
which such general provisions do not apply to the Offered Debt Securities will
be described in the Prospectus Supplement relating to such Offered Debt
Securities.
The Debt Securities to which this Prospectus relates will be issued under
an Indenture dated as of August 1, 1986, as supplemented (as so supplemented,
the "Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee"), which is filed as an exhibit to the Registration Statement. The
following summaries of certain provisions of the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture, including the definitions therein of
certain terms. Numerical references in parentheses below are to sections in the
Indenture. Whenever particular sections or defined terms of the Indenture are
referred to, such sections or defined terms are incorporated herein by
reference.
GENERAL
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder and provides that Debt Securities may be issued thereunder
from time to time in one or more series up to the aggregate
6
<PAGE> 8
principal amount which may be authorized from time to time by the Company. All
Debt Securities will be unsecured and will rank pari passu with all other
unsecured unsubordinated indebtedness of the Company. Except as described below,
the Indenture does not limit the amount of other indebtedness or securities
which may be issued by the Company.
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Debt Securities offered thereby for the following terms of
such series of Offered Debt Securities: (1) the designation, aggregate principal
amount and authorized denominations of such Offered Debt Securities; (2) the
purchase price of such Offered Debt Securities (expressed as a percentage of the
principal amount thereof); (3) the date or dates on which such Offered Debt
Securities will mature; (4) the rate or rates per annum, if any (which may be
fixed or variable), at which such Offered Debt Securities will bear interest or
the method by which such rate or rates will be determined; (5) the dates on
which such interest will be payable and the record dates for payment of
interest, if any; (6) the coin or currency in which payment of the principal of
(and premium, if any) or interest, if any, on such Offered Debt Securities will
be payable; (7) the terms of any mandatory or optional redemption (including any
sinking fund) or any obligation of the Company to repurchase Offered Debt
Securities; (8) whether such Offered Debt Securities are to be issued in whole
or in part in the form of one or more temporary or permanent global Debt
Securities ("Global Notes") and, if so, the identity of the depositary, if any,
for such Global Note or Notes; and (9) any other additional provisions or
specific terms which may be applicable to that series of Offered Debt
Securities.
Principal, premium, if any, and interest, if any, will be payable, and the
Debt Securities will be transferable or exchangeable, at the office or agency of
the Company maintained for such purposes in the Borough of Manhattan, The City
of New York, provided that payment of interest on any Debt Securities may, at
the option of the Company, be made by check mailed to the registered holders.
Interest, if any, will be payable on any interest payment date to the persons in
whose names the Debt Securities are registered at the close of business on the
record date with respect to such interest payment date. (Sections 202, 305, 307
and 1002).
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in fully registered form without coupons
in denominations of $1,000 or any integral multiple thereof. No service charge
will be made for any registration of, transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. (Sections 302
and 305).
Some or all of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the Prospectus Supplement relating thereto.
GLOBAL NOTES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Notes that will be deposited with or on behalf of a
depositary located in the United States (a "U.S. Depositary") identified in the
Prospectus Supplement relating to such series.
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will apply
to all depositary arrangements.
Unless otherwise specified in an applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Note to be deposited with or
on behalf of a U.S. Depositary will be represented by a Global Note registered
in the name of such depositary or its nominee. Upon the issuance of a Global
Note in registered form, the U.S. Depositary for such Global Note will credit,
on its book-entry registration and transfer system, the respective principal
amounts of the Debt Securities represented by such Global Note to the accounts
of institutions that have accounts with such depositary or its nominee
("participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or by the
7
<PAGE> 9
Company, if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in such Global Notes will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests by participants in such Global Notes will be shown on,
and the transfer of that ownership interest will be effected only through,
records maintained by the U.S. Depositary or its nominee for such Global Notes.
Ownership of beneficial interests in Global Notes by persons that hold such
beneficial interests through participants will be shown on, and the transfer of
that ownership interest within such participant will be effected only through,
records maintained by such participant. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Note.
So long as the U.S. Depositary for a Global Note in registered form, or its
nominee, is the registered owner of such Global Note, such depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the
Debt Securities represented by such Global Note for all purposes under the
Indenture governing such Debt Securities. Except as set forth below, owners of
beneficial interests in such Global Notes will not be entitled to have Debt
Securities of the series represented by such Global Notes registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of, premium, if any, and any interest on Debt
Securities registered in the name of or held by a U.S. Depositary or its nominee
will be made to the U.S. Depositary or its nominee, as the case may be, as the
registered owner or the holder of the Global Note representing such Debt
Securities. None of the Company, the Trustee, any Paying Agent or the Security
Registrar for such Debt Securities will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Note for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that the U.S. Depositary for Debt Securities of a
series, upon receipt of any payment of principal, premium or interest in respect
of a permanent Global Note, will credit immediately participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Note as shown on the records of such
depositary. The Company also expects that payments by participants to owners of
beneficial interests in such Global Note held through such participants will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name", and will be the responsibility of such participants.
A Global Note may not be transferred except as a whole by the U.S.
Depositary for such Global Note to a nominee of such depositary or by a nominee
of such depositary to such depositary or another nominee of such depositary or
by such depositary or any such nominee to a successor of such depositary or a
nominee of such successor. If a U.S. Depositary for Debt Securities of a series
is at any time unwilling or unable to continue as a depositary and a successor
depositary is not appointed by the Company within ninety days, the Company will
issue Debt Securities in definitive registered form in exchange for the Global
Note or Notes representing such Debt Securities. In addition, the Company may at
any time and in its sole discretion determine not to have any Debt Securities in
registered form represented by one or more Global Notes and, in such event, will
issue Debt Securities in definitive form in exchange for the Global Note or
Notes representing such Debt Securities. In any such instance, an owner of a
beneficial interest in a Global Note will be entitled to physical delivery in
definitive form of Debt Securities of the series represented by such Global Note
equal in principal amount to such beneficial interest and to have such Debt
Securities registered in its name.
CERTAIN COVENANTS OF THE COMPANY
Limitation on Liens. Unless otherwise indicated in the Prospectus
Supplement relating to a series of Debt Securities, the Company will not, and
will not permit any Restricted Subsidiary to, create, assume or guarantee any
indebtedness for money borrowed, secured by any mortgage, lien, pledge, charge
or other security interest or encumbrance (hereinafter referred to as a
"Mortgage" or "Mortgages") on any Principal
8
<PAGE> 10
Property of the Company or a Restricted Subsidiary or on any shares or Funded
Indebtedness of a Restricted Subsidiary (whether such Principal Property, shares
or Funded Indebtedness are now owned or hereafter acquired) without, in any such
case, effectively providing concurrently with the creation, assumption or
guaranteeing of such indebtedness that the Debt Securities (together, if the
Company shall so determine, with any other indebtedness then or thereafter
existing, created, assumed or guaranteed by the Company or such Restricted
Subsidiary ranking equally with the Debt Securities) shall be secured equally
and ratably with or prior to such indebtedness. The Indenture excludes, however,
from the foregoing any indebtedness secured by a Mortgage (including any
extension, renewal or replacement of any Mortgage hereinafter specified or any
indebtedness secured thereby, without increase of the principal of such
indebtedness) (i) on property, shares or Funded Indebtedness of any corporation
existing at the time such corporation becomes a Restricted Subsidiary; (ii) on
property existing at the time of acquisition of such property, or to secure
indebtedness incurred for the purpose of financing the purchase price of such
property or improvements or construction thereon which indebtedness is incurred
prior to or within 180 days after the later of such acquisition, completion of
such construction or the commencement of commercial operation of such property;
(iii) on property, shares or Funded Indebtedness of a corporation existing at
the time such corporation is merged into or consolidated with the Company or a
Restricted Subsidiary, or at the time of a sale, lease or other disposition of
the properties of a corporation as an entirety or substantially as an entirety
to the Company or a Restricted Subsidiary; (iv) on property of a Restricted
Subsidiary to secure indebtedness of such Restricted Subsidiary to the Company
or another Restricted Subsidiary; (v) on property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the purchase price or
the cost of constructing or improving the property subject to such Mortgage; or
(vi) existing at the date of the Indenture; provided, however, that any Mortgage
permitted by any of the foregoing clauses (i), (ii), (iii) and (v) shall not
extend to or cover any property of the Company or such Restricted Subsidiary, as
the case may be, other than the property specified in such clauses and
improvements thereto. (Section 1004) See also "Exempted Indebtedness" below.
Limitation on Sale and Leaseback Transactions. Unless otherwise indicated
in the Prospectus Supplement relating to a series of Debt Securities, sale and
leaseback transactions (which are defined in the Indenture to exclude leases
expiring within three years of making, leases between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries and any lease of part
of a Principal Property, which has been sold, for use in connection with the
winding up or termination of the business conducted on such Principal Property)
by the Company or any Restricted Subsidiary of any Principal Property are
prohibited, unless (a) the Company would be entitled to incur indebtedness
secured by a Mortgage on such Principal Property (see "Limitations on Liens"
above) or (b) an amount equal to the fair value of the Principal Property so
leased (as determined by the Board of Directors of the Company) is applied
within 180 days to the retirement (otherwise than by payment at maturity or
pursuant to mandatory sinking funds) of Debt Securities or Funded Indebtedness
of the Company or any Restricted Subsidiary on a parity with the Debt Securities
or to purchase, improve or construct Principal Properties. (Section 1005) See
also "Exempted Indebtedness" below.
Exempted Indebtedness. Notwithstanding the limitations on Mortgages and
sale and leaseback transactions described above, the Company or any Restricted
Subsidiary may, in addition to amounts permitted under such restrictions,
create, assume or guarantee secured indebtedness or enter into sale and
leaseback transactions which would otherwise be prohibited, provided that at the
time of such event, and after giving effect thereto, the sum of such outstanding
secured indebtedness plus the Attributable Debt in respect of such sale and
leaseback transactions (other than sale and leaseback transactions entered into
prior to the date of the Indenture and sale and leaseback transactions whose
proceeds have been applied in accordance with clause (b) under "Limitation on
Sale and Leaseback Transactions") does not exceed 5% of the shareholders' equity
in the Company and its consolidated Subsidiaries. (Section 1004) "Attributable
Debt" means, as of any particular time, the then present value of the total net
amount of rent required to be paid under such leases during the remaining terms
thereof (excluding any renewal term unless the renewal is at the option of the
9
<PAGE> 11
lessor), discounted at the actual interest factor included in such rent, or, if
such interest factor is not readily determinable, then at the rate of 8 3/8% per
annum. (Section 1004)
Restrictions Upon Merger and Sales of Assets. Upon any consolidation or
merger of the Company with or into any other corporation or any sale, conveyance
or lease of all or substantially all the property of the Company to any other
corporation, the corporation (if other than the Company) formed by such
consolidation, or into which the Company shall have been merged, or the
corporation which shall have acquired or leased such property (which corporation
shall be a solvent corporation organized under the laws of the United States of
America or a State thereof or the District of Columbia) shall expressly assume
the due and punctual payment of the principal of and premium, if any, and
interest, if any, on all of the Debt Securities. The Company will not so
consolidate or merge, or make any such sale, lease or other disposition, and the
Company will not permit any other corporation to merge into the Company, unless
immediately after giving effect thereto, the Company or such successor
corporation, as the case may be, will not be in default under the Indenture.
(Section 801) If, upon any such consolidation, merger, sale, conveyance or
lease, or upon any consolidation or merger of any Restricted Subsidiary, or upon
the sale, conveyance or lease of all or substantially all the property of any
Restricted Subsidiary to any other corporation, any Principal Property or any
shares or Funded Indebtedness of any Restricted Subsidiary would become subject
to any Mortgage, the Company will secure the due and punctual payment of the
principal of, premium, if any, and interest, if any, on the Debt Securities
(together with, if the Company shall so determine, any other indebtedness of or
guarantee by the Company or such Restricted Subsidiary ranking equally with the
Debt Securities) by a Mortgage, the lien of which will rank prior to the lien of
such Mortgage of such other corporation on all assets owned by the Company or
such Restricted Subsidiary. (Section 802)
Certain Definitions. The term "Principal Property" means any manufacturing
plant or other manufacturing facility of the Company or any Restricted
Subsidiary, which plant or facility is located within the United States of
America, except any such plant or facility which the Board of Directors by
resolution declares is not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries. The term "Funded
Indebtedness" means indebtedness created, assumed or guaranteed by a person for
money borrowed which matures by its terms, or is renewable by the borrower to a
date, more than one year after the date of its original creation, assumption or
guarantee. The term "Restricted Subsidiary" means any Subsidiary which owns a
Principal Property excluding, however, any corporation the greater part of the
operating assets of which are located or the principal business of which is
carried on outside the United States of America. The term "Subsidiary" means any
corporation of which at least a majority of the outstanding stock having voting
power under ordinary circumstances to elect a majority of the board of directors
of said corporation shall at the time be owned by the Company or by the Company
and one or more Subsidiaries or by one or more Subsidiaries. (Section 101)
EVENTS OF DEFAULT
As to each series of Debt Securities, an Event of Default is defined in the
Indenture as being: default in payment of any interest or any sinking fund
payment on such series which continues for 30 days; default in payment of any
principal or premium, if any, on such series; default after written notice in
performance of any other covenant in the Indenture (other than a covenant
included solely for the benefit of Debt Securities of another series) which
continues for 90 days; certain events in bankruptcy, insolvency or
reorganization; or other Events of Default specified in or pursuant to a Board
Resolution or in a supplemental indenture. The Indenture provides that the
Trustee may withhold notice to the holders of Debt Securities of such series of
any default (except in payment of principal of or interest, if any, or premium,
if any, on such series or in payment of any sinking fund installment on such
series) if the Trustee considers it in the interest of such holders to do so.
(Sections 501 and 602)
In case an Event of Default shall occur and be continuing with respect to
the Debt Securities of any series, the Trustee or the holders of not less than
25% in aggregate principal amount of the Debt Securities then outstanding of
that series may declare the principal of the Debt Securities of such series (or,
if the Debt Securities of that series were issued as discounted Debt Securities,
such portion of the principal as may be specified in the terms of that series)
to be due and payable. Any Event of Default with respect to the Debt
10
<PAGE> 12
Securities of any series (except defaults in payment of principal or premium, if
any, or interest, if any, on the Debt Securities of such series) may be waived
by the holders of a majority in aggregate principal amount of the Debt
Securities of that series then outstanding. (Sections 502 and 513)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
is under no obligation to exercise any of the rights or powers under the
Indenture at the request, order or direction of any of the holders of Debt
Securities, unless such holders shall have offered to the Trustee reasonable
security or indemnity. (Section 603) Subject to such provisions for the
indemnification of the Trustee and certain limitations contained in the
Indenture, the holders of a majority in principal amount of the Debt Securities
of any series then outstanding shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, with respect to the
Debt Securities of such series. (Sections 512 and 603) The Company is required
annually to deliver to the Trustee an officers' certificate stating whether or
not the signers have knowledge of any default in performance by the Company of
the covenants described above. (Section 1007)
DEFEASANCE
The Indenture provides that the Company, at its option, (a) will be
discharged from any and all obligations with respect to any series of Debt
Securities (except for certain obligations which include registering the
transfer or exchange of the Debt Securities, replacing stolen, lost or mutilated
Debt Securities, maintaining payment agencies and holding monies for payment in
trust) or (b) need not comply with certain restrictive covenants of the
Indenture as to any series of Debt Securities (as described above under "Certain
Covenants of the Company--Limitation on Liens", "Limitation on Sale and
Leaseback Transactions" and the last sentence of "Restrictions Upon Merger and
Sales of Assets"), in each case upon the deposit with the Trustee (and in the
case of a discharge 91 days after such deposit), in trust, of money, or U.S.
Government Obligations, or a combination thereof, which, through the payment of
interest thereon and principal thereof in accordance with their terms, will
provide money, in an amount sufficient to pay all the principal (including any
mandatory sinking fund payments, if any) of, and interest, if any, on the Debt
Securities of such series on the dates such payments are due in accordance with
the terms of such Debt Securities to their stated maturities or to and including
a redemption date which has been irrevocably designated by the Company for
redemption of such Debt Securities. To exercise any such option, the Company is
required to meet certain conditions, including delivering to the Trustee an
opinion of counsel to the effect that the deposit and related defeasance would
not cause the holders of the Debt Securities to recognize income, gain or loss
for Federal income tax purposes and, in the case of a discharge pursuant to
clause (a), accompanied by a ruling of the United States Internal Revenue
Service ("IRS") to such effect or an opinion of counsel to such effect based
upon a ruling of the IRS. (Sections 403 and 1006)
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in principal amount of
the outstanding Debt Securities of all series affected by such
modification(voting as one class), to modify the Indenture or the rights of the
holders of the Debt Securities, except that no such modification shall, without
the consent of the holder of each Debt Security so affected, (i) change the
maturity of any Debt Security, or reduce the rate or extend the time of payment
of interest thereon, or reduce the principal amount thereof (including, in the
case of a discounted Debt Security, the amount payable thereon in the event of
acceleration) or any redemption premium thereon, or change the place or medium
of payment of such Debt Security, or impair the right of any holder to institute
suit for payment thereof or (ii) reduce the percentage of Debt Securities, the
consent of the holders of which is required for any such modification or for
certain waivers under the Indenture. (Section 902)
CONCERNING THE TRUSTEE
The Company may from time to time maintain lines of credit and have other
customary banking relationships with the Trustee and its affiliated banks.
11
<PAGE> 13
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to which this Prospectus relates
to or for resale to the public through one or more underwriters, acting alone or
in underwriting syndicates led by one or more managing underwriters, and also
may sell such Debt Securities directly to other purchasers or dealers or through
agents.
The distribution of Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed from
time to time, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. Each Prospectus
Supplement will describe the method of distribution of the Offered Debt
Securities.
In connection with the sale of Debt Securities, such underwriters, dealers
and agents may receive compensation from the Company, or from purchasers of Debt
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. Underwriters, dealers and agents that participate in
the distribution of Debt Securities and, in certain cases, direct purchasers
from the Company, may be deemed to be "underwriters" and any discounts or
commissions received by them and any profit on the resale of Debt Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act. Any such underwriters, dealers or agents will be identified and
any such compensation will be described in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act. The place and time of delivery
for Offered Debt Securities in respect of which this Prospectus is delivered are
set forth in the accompanying Prospectus Supplement.
LEGAL MATTERS
Certain legal matters with respect to the Debt Securities will be passed
upon for the Company by Patricia Nachtigal, Vice President and General Counsel
of the Company, and for the underwriters, dealers or other agents, if any, by
Simpson Thacher & Bartlett (a partnership which includes professional
corporations), 425 Lexington Avenue, New York, New York 10017. Simpson Thacher &
Bartlett renders legal services to the Company on a regular basis.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
Ingersoll-Rand Company's Annual Report on Form 10-K for the year ended December
31, 1994 and the audited financial statements of Clark included in the Company's
Current Report on Form 8-K dated June 5, 1995, as amended, have been so
incorporated in reliance on the reports of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the Registrant's expenses in connection with
the issuance of the securities being registered. Except for the registration
fee, the amounts listed below are estimates.
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission............................ $258,621
Printing of Registration Statement, Prospectus, Indenture, etc. .................. 15,000
Printing and Engraving of Certificates............................................ 5,000
Blue Sky Fees..................................................................... 20,000
Rating Agency Fees................................................................ 193,000
Accountants' Fees and Expenses.................................................... 40,000
Legal Fees and Expenses........................................................... 70,000
Fees and Expenses of Trustee...................................................... 20,000
Miscellaneous..................................................................... 3,379
--------
Total................................................................... $625,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seventh of the Company's Restated Certificate of Incorporation, as
amended, provides that, to the fullest extent permitted by the laws of the State
of New Jersey, directors and officers of the Company shall not be personally
liable to the Company or its shareholders for damages for breach of any duty
owed to the Company or its shareholders, except that no such director or officer
shall be relieved from liability for any breach of duty based upon an act or
omission (i) in breach of such person's duty of loyalty to the Company or its
shareholders, (ii) not in good faith or involving a knowing violation of law or
(iii) resulting in receipt by such person of an improper personal benefit.
Article Seventh also provides that each person who was or is made a party
or is threatened to be made a party to or is involved in any pending, threatened
or completed civil, criminal, administrative or arbitrative action, suit or
proceeding, by reason of his or her being or having been a director or officer
of the Company, or by reason of his or her being or having been a director,
officer, trustee, employee or agent of any other corporation or of any
partnership, joint venture, employee benefit plan or other entity or enterprise,
serving as such at the request of the Company, shall be indemnified and held
harmless by the Company to the fullest extent permitted by the New Jersey
Business Corporation Act (the "Act"), from and against all reasonable costs,
disbursements and attorneys' fees, and all amounts paid or incurred in
satisfaction of settlements, judgments, fines and penalties, incurred or
suffered in connection with any such proceeding, and such indemnification shall
continue as to a person who has ceased to be a director, officer, trustee,
employee or agent and shall inure to the benefit of his or her heirs, executors,
administrators and assigns; provided, however, that there shall be no
indemnification with respect to any settlement of any proceeding unless the
Company has given its prior consent to such settlement or disposition. This
right to indemnification includes the right to be paid by the Company the
expenses incurred in connection with any proceeding in advance of the final
disposition of such proceeding as authorized by the Board of Directors;
provided, however, that, if the Act so requires, the payment of such expenses
shall be made only upon receipt by the Company of an undertaking to repay all
amounts so advanced unless it shall ultimately be determined that such director
or officer is entitled to be indemnified.
Article Seventh also provides that the right to indemnification thereunder
is a contract right and gives claimants certain rights with respect to claims
for indemnification not paid by the Company after 30 days following a written
request. Finally, Article Seventh provides that the right to indemnification and
advancement of expenses provided thereby shall not exclude or be exclusive of
any other rights to which any person may be entitled under a certificate of
incorporation, by-law, agreement, vote of shareholders or otherwise.
II-1
<PAGE> 15
Sections 1 and 2 of Article IX of the Company's By-Laws also provide directors
and officers with certain rights to indemnity that are substantially similar to
the foregoing provisions of Article Seventh.
Section 14A: 3-5 of the Act provides that no indemnification shall be made
if such person shall have been adjudged liable for negligence or misconduct
unless the court in which such proceeding was brought determines upon
application that the defendant, officers or directors are fairly and reasonably
entitled to indemnity for such expenses despite such adjudication of liability.
In any case, a corporation must indemnify an officer or director against
expenses (including attorney's fees) to the extent that he has been successful
on the merits or otherwise or in defense of any claim or issue.
The Company has a liability insurance policy in effect which covers certain
claims against any officer or director of the Company by reason of certain
breaches of duty, neglect, errors or omissions committed by such person in his
capacity as an officer or director.
ITEM 16. EXHIBITS.
<TABLE>
<S> <C> <C>
1.1 -- Form of Underwriting Agreement Standard Provisions.
*4.1 -- Indenture between Ingersoll-Rand Company and The Bank of New York (Exhibit 4.1
in Registrant's Form S-3 Registration Statement No. 33-39474).
*4.2 -- First Supplemental Indenture (Exhibit 4.2 in Registrant's Form S-3 Registration
Statement No. 33-39474).
*4.4 -- Second Supplemental Indenture (Exhibit 4.3 in Registrant's Form S-3
Registration Statement No. 33-39474).
*4.5 -- Form of Debt Securities (included in Exhibit 4.1).
5 -- Opinion and Consent of Patricia Nachtigal, Esq., Vice President and General
Counsel.
*12 -- Computations of Ratios of Earnings to Fixed Charges (Exhibit 12 in Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 and the
Current Report on Form 8-K dated June 5, 1995, as amended).
23.1 -- Consent of Patricia Nachtigal, Esq. (included in Exhibit 5).
23.2 -- Consent of Independent Accountants.
24 -- Powers of Attorney.
25 -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The
Bank of New York.
</TABLE>
- ---------------
* Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant pursuant to
Section 13 or
II-2
<PAGE> 16
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment 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;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering;
(4) That, for the 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 Section 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 offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(5) 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 shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and
(6) 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.
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 specified in Item 15 of this Registration
Statement 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 said Act 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 Act, and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 17
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Woodcliff Lake, New Jersey, on the 15th day of June, 1995.
INGERSOLL-RAND COMPANY
By /s/ JAMES E. PERRELLA
------------------------------------
(James E. Perrella)
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on June 15, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
/s/ JAMES E. PERRELLA Chairman of the Board, President, Chief
- --------------------------------------------- Executive Officer and Director (Principal
(James E. Perrella) Executive Officer)
/s/ THOMAS F. MCBRIDE Senior Vice President and Chief Financial
- --------------------------------------------- Officer (Principal Financial Officer)
(Thomas F. McBride)
/s/ RICHARD A. SPOHN Controller -- Accounting and Reporting
- --------------------------------------------- (Principal Accounting Officer)
(Richard A. Spohn)
DONALD J. BAINTON* Director
- ---------------------------------------------
(Donald J. Bainton)
THEODORE H. BLACK* Director
- ---------------------------------------------
(Theodore H. Black)
BRENDAN T. BYRNE* Director
- ---------------------------------------------
(Brendan T. Byrne)
JOSEPH P. FLANNERY* Director
- ---------------------------------------------
(Joseph P. Flannery)
CONSTANCE J. HORNER* Director
- ---------------------------------------------
(Constance J. Horner)
H. WILLIAM LICHTENBERGER* Director
- ---------------------------------------------
(H. William Lichtenberger)
</TABLE>
II-4
<PAGE> 18
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------------------------------------------- --------------------------------------------
<S> <C>
ALEXANDER H. MASSAD* Director
- ---------------------------------------------
(Alexander H. Massad)
JOHN E. PHIPPS* Director
- ---------------------------------------------
(John E. Phipps)
CEDRIC E. RITCHIE* Director
- ---------------------------------------------
(Cedric E. Ritchie)
ORIN R. SMITH* Director
- ---------------------------------------------
(Orin R. Smith)
RICHARD W. SWIFT* Director
- ---------------------------------------------
(Richard W. Swift)
*By: /s/ THOMAS F. MCBRIDE
-------------------------------------------
(Thomas F. McBride),
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 19
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
1.1 -- Form of Underwriting Agreement Standard Provisions
*4.1 -- Indenture between Ingersoll-Rand Company and The Bank of New York (Exhibit 4.1 in
Registrant's Form S-3 Registration Statement No. 33-39474)
*4.2 -- First Supplemental Indenture (Exhibit 4.2 in Registrant's Form S-3 Registration
Statement No. 33-39474)
*4.3 -- Second Supplemental Indenture (Exhibit 4.3 in Registrant's Form S-3 Registration
Statement No. 33-39474)
*4.4 -- Form of Debt Securities (included in Exhibit 4.1)
5 -- Opinion and Consent of Patricia Nachtigal, Esq., Vice President and General Counsel
*12 -- Computations of Ratios of Earnings to Fixed Charges (Exhibit 12 in Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 and the
Current Report on Form 8-K dated June 5, 1995, as amended)
23.1 -- Consent of Patricia Nachtigal, Esq. (included in Exhibit 5)
23.2 -- Consent of Independent Accountants
24 -- Powers of Attorney
25 -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank
of New York
</TABLE>
- ---------------
* Incorporated herein by reference as indicated.
<PAGE> 1
INGERSOLL-RAND COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT STANDARD PROVISIONS
June, 1995
From time to time Ingersoll-Rand Company (the "Company")
proposes to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I to
the applicable Pricing Agreement (such firms constituting the "Underwriters"
with respect to such Pricing Agreement) certain of its debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (the Securities
so specified being referred to herein as the "Designated Securities").
1. The terms and rights of the issuance of the Designated
Securities shall be specified in Schedule I to the applicable Pricing Agreement
and in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firm or firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representative (the
"Representative"). The term "Representative" also refers to Underwriters who act
without any firm being designated as their representative. These Underwriting
Agreement Standard Provisions shall not be construed as an obligation of the
Company to sell any of the Securities or as an obligation of any of the
Underwriters to purchase the Securities. The obligation of the Company to issue
and sell any of the Securities and the obligation of any of the Underwriters to
purchase any of the Securities shall be evidenced by the Pricing Agreement with
respect to the Designated Securities specified therein. Each Pricing Agreement
shall specify the aggregate principal amount of such Designated Securities, the
initial public offering price of such Designated Securities, the purchase price
to the Underwriters of such Designated Securities, the names of the Underwriters
of such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
<PAGE> 2
2
exchange of telegraphic communications or any other rapid transmission device
designated to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement in respect of the Securities and
more particularly described in the applicable Pricing Agreement has been filed
with the Securities and Exchange Commission (the "Commission") in the form
heretofore delivered or to be delivered to the Representative, and such
registration statement in such form has been declared effective by the
Commission and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in such
registration statement being hereinafter called a "Preliminary Prospectus"; if
any post-effective amendment to such registration statement has been filed with
the Commission prior to the date of the applicable Pricing Agreement, the most
recent such amendment has been declared effective by the Commission; "Effective
Date" means the date as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; such registration statement, as amended at the Effective Date,
including all material incorporated by reference therein and, if the date of the
Pricing Agreement is on or before the fifteenth business day after the Effective
Date, including all information deemed to be a part thereof as of the Effective
Date pursuant to paragraph (b) of Rule 430A under the Securities Act of 1933, as
amended (the "Act"), is hereinafter referred to as the "Registration Statement,"
and the form of prospectus relating to the Designated Securities, as first filed
pursuant to paragraph (1) or (4) of Rule 424(b) ("Rule 424(b)") under the Act
or, if the date of the Pricing Agreement is after the fifteenth business day
after the Effective Date, pursuant to Rule 424(b)(2) or (5), as such form of
prospectus may be supplemented as contemplated by Section 1 to reflect the terms
of the Designated Securities and the terms of offering thereof, including all
documents incorporated by reference therein, is hereinafter referred to as the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment or supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated therein by reference);
<PAGE> 3
3
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; any further
documents so filed and incorporated by reference in the Prospectus or in any
amendments or supplements thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall apply only to
documents so filed and incorporated by reference during the period that a
prospectus relating to the Designated Securities is required to be delivered in
connection with sales of such Designated Securities (such period being
hereinafter sometimes referred to as the "prospectus delivery period"); and
provided further, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through the
Representative expressly for use in the Prospectus;
(c) The Registration Statement and the Prospectus conform, and
any amendments or supplements thereto will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder, 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 applicable
filing date as to the Prospectus and any supplement thereto, 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 not misleading;
provided, however, that this representation and warranty shall apply only to
amendments or supplements filed or made during the prospectus delivery period;
and provided further, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through
the Representative expressly for use in the Prospectus;
(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a prospective material
adverse change in or affecting the business and operations, financial position,
stockholders'
<PAGE> 4
4
equity or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company is duly incorporated and validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and has been duly qualified
as a foreign corporation for the transaction of business under the laws of each
other jurisdiction in which the nature of the business it transacts or the
properties it owns requires such qualification except where such failures to be
so qualified would not, individually or in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole;
(f) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this Agreement and
duly authenticated by the Trustee in accordance with the Indenture, such
Designated Securities will have been duly executed, issued and delivered and
will constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture; the Indenture, has been duly authorized
by the Company and is duly qualified under the Trust Indenture Act and, assuming
due authorization, execution and delivery thereof by the Trustee, constitutes a
valid and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and to general equity principles; and the Securities, the Designated
Securities, and the Indenture conform in all material respects to the
descriptions thereof in the Prospectus;
(g) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture and this Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the Company or any statute, order,
rule or regulation (except for state securities or Blue Sky laws, rules and
regulations, as to which the Company makes no representation) of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the consummation
by the Company of
<PAGE> 5
5
the other transactions contemplated by the applicable Pricing Agreement or the
Indenture except such as have been, or will have been prior to the Time of
Delivery (as defined in Section 4 hereof), obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations and
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated Securities by
the Underwriters; and
(h) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the best of the
Company's knowledge, threatened 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 individually or in the aggregate have a reasonable possibility
of having a material adverse effect on the consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole.
3. Upon the execution of the applicable Pricing Agreement and
the authorization by the Representative of the release of the Designated
Securities, the several Underwriters propose to offer such Securities for sale
upon the terms and conditions set forth in the Prospectus.
4. Designated Securities to be purchased by each Underwriter,
in definitive form to the extent practicable, and in such authorized
denominations and registered in such names as the Representative may request
upon at least forty-eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representative for the accounts of the
Underwriters, against payment by such Underwriter or on its behalf of the
purchase price therefor in the manner and in the funds specified in such Pricing
Agreement, all at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representative and the
Company may agree upon in writing, such time and date being herein called the
"Time of Delivery" for such Designated Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended and supplemented in
relation to the applicable Designated Securities in a form not disapproved by
the Representative and to file such Prospectus with the Commission (i) pursuant
to Rule 424(b)(1) (or, if applicable and if consented to by the Representatives,
pursuant to Rule 424(b)(4)) not later than the Commission's close of business on
the earlier of (A) the second business day following the date of the applicable
Pricing Agreement or (B) the fifteenth business day after the Effective Date, or
(ii) if the date of the applicable Pricing Agreement is after the fifteenth
<PAGE> 6
6
business day after the Effective Date, pursuant to Rule 424(b)(2) (or, if
applicable and if consented to by the Representatives, pursuant to Rule
424(b)(5)) not later than the second business day following the date of the
applicable Pricing Agreement; the Company will advise you promptly of any such
filing pursuant to Rule 424(b); to advise the Representative promptly of any
amendment or supplement to the Registration Statement or Prospectus after such
Time of Delivery and during the prospectus delivery period and furnish the
Representative with copies thereof; 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 during the prospectus
delivery period; and during such same period to advise the Representative,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or become effective or any supplement to
the Prospectus or any amended Prospectus has been filed, or mailed for filing,
of the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Designated Securities,
of the suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such stop order
or of any such order preventing or suspending the use of any prospectus relating
to the Designated Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Designated Securities for
offering and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Designated Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
in such quantities as the Representative may from time to time reasonably
request, and, if the delivery of a prospectus is required at any time prior to
the expiration of nine months after the time of issue of such Prospectus in
connection with the offering or sale of the Designated Securities and if at such
time any event shall have occurred 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 under which they were made when such
Prospectus is
<PAGE> 7
7
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act, to
notify the Representative and upon the request of the Representative to file
such document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representative may from time
to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus in
connection with sales of any of such Designated Securities at any time nine
months or more after the time of issue of the Prospectus, upon the request of
the Representative but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Representative may request of
an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to its security holders as soon
as practicable an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158); and
(e) During the period beginning from the date of the applicable
Pricing Agreement and continuing to and including the earlier of (i) the
termination of trading restrictions for the Designated Securities, as notified
to the Company by the Representative and (ii) the Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time of Delivery and which
are substantially similar to the Designated Securities, without the prior
written consent of the Representative.
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Designated Securities under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements (except as expressly provided in the last clause of
Section 5(c) hereof) thereto and the mailing and delivering of copies thereof to
the Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Designated
Securities; (iii) all expenses in connection with the
<PAGE> 8
8
qualification of the Designated Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Designated
Securities; (v) any filing fees incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Designated Securities; (vi) the cost of preparing the Designated Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Designated Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 5(c), Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities specified in the applicable Pricing Agreement shall be subject, in
the discretion of the Representative, to the accuracy of the representations and
warranties and other statements of the Company herein, at and as of the Time of
Delivery, the performance by the Company of all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) 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 Act and in accordance with Section
5(a) of the Agreement; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with;
(b) Simpson Thacher & Bartlett, counsel for the Underwriters,
shall have furnished to the Representative such opinion or opinions, dated the
Time of Delivery, with respect to the incorporation of the Company, the validity
of the Indenture, the Designated Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as the
Representative 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;
(c) Patricia Nachtigal, Esq., Vice President and General
Counsel of the Company, shall have furnished to the
<PAGE> 9
9
Representative her written opinion, dated the Time of Delivery, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing and in good standing as a corporation under
the laws of the State of New Jersey, with corporate power and
authority 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 except where such failures
to be so qualified or be in good standing would not,
individually or in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole
(such counsel being entitled to rely in respect of the opinion
in this clause upon certificates of state officials, provided
that such counsel shall state that she believes that both the
Representative and she are justified in relying upon such
certificates);
(iii) To the best of such counsel's knowledge there
are no legal or governmental proceedings pending 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, other than as set forth in the Prospectus and other
than litigation incident to the kind of business conducted by
the Company and its subsidiaries which individually and in the
aggregate is not material to the Company and its subsidiaries
taken as a whole; and to the best of such counsel's knowledge
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(v) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture, subject to
bankruptcy, insolvency, reorganization and other similar laws
of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
<PAGE> 10
10
(vi) The Indenture has been duly authorized,
executed and delivered by the parties thereto and constitutes a
valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture, this Agreement and
the Pricing Agreement with respect to the Designated Securities
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the
Company pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument which
is material to the Company and its subsidiaries taken as a
whole and is known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company or any of its significant
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation, as amended, or the By-Laws of the Company or any
statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction
over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification
of or with any such court or any such regulatory authority or
other governmental agency or body is required for the issue and
sale of the Designated Securities or the consummation of the
other transactions contemplated by this Agreement or such
Pricing Agreement or the Indenture, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
(viii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion), when
<PAGE> 11
11
they became effective or were filed with the
Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case of
a registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and, in the case of
other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact
or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(ix) The Registration Statement and the Prospectus
as amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder;
such counsel has no reason to believe that, as of the effective
date of the Registration Statement, either the Registration
Statement or the Prospectus (or, as of its date, any further
amendment or supplement thereto made by the Company prior to
the Time of Delivery) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of the Time of Delivery, either the
Registration Statement or the Prospectus (or any such further
amendment or supplement thereto) contains an untrue statement
of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and such counsel does not know of any
contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required
to be incorporated by reference into the Prospectus as amended
or supplemented or required to be described in the Registration
Statement or the Prospectus as amended or supplemented which
are not filed or incorporated by reference or described as
required;
<PAGE> 12
12
(d) The Trustee shall have furnished to the Representative a
certificate, dated the Time of Delivery, as to its due authorization, execution
and delivery of the Indenture and its due authentication of the Designated
Securities;
(e) At the Time of Delivery, the independent accountants who
have certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall have
furnished to the Representative a letter, dated the Time of Delivery, of the
type described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 49 covering such matters as the
Representative may reasonably request and in form and substance satisfactory to
the Representative;
(f) Since the effective date of the Registration Statement (or
any post-effective amendment thereto) no event shall have occurred which should
have been set forth in an amendment to the Registration Statement or a
supplement to the Prospectus but which has not been so set forth, and since the
respective dates as of which information is given in the Prospectus there shall
not have been any change or any development involving a prospective change in or
affecting the business and operations, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which is in the reasonable judgment of the Representative so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus;
(g) Subsequent to the date of the applicable Pricing Agreement
there shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
Inc.; (ii) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities; or (iii) the outbreak
or material escalation of hostilities involving the United States or the
declaration, on or after the date hereof, by the United States of a national
emergency or war if the effect of any such event specified in this clause (iii)
in the reasonable judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus;
(h) The Company shall have furnished or caused to be furnished
to the Representative at the Time of Delivery a certificate or certificates of
officers of the Company as to the accuracy of the representations and warranties
of the Company herein at and as of the Time of Delivery, as to the performance
by the Company of all of its obligations hereunder to be
<PAGE> 13
13
performed at or prior to the Time of Delivery, and as to the matters set forth
in subsections (a) and (f) of this Section; and
(i) Subsequent to the execution of the applicable Pricing
Agreement, there shall not have been any decrease in the ratings of any of the
Company's debt securities by Moody's Investors Service, Inc. or Standard &
Poor's Corporation.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus or
any other prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus or any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representative expressly for use in the
Prospectus relating to such Designated Securities; provided further, however,
that the foregoing indemnity with respect to preliminary prospectuses shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Designated Securities if such
untrue statement or omission made in any preliminary prospectus is eliminated or
remedied in the Prospectus relating to such Securities and if a copy of the
Prospectus relating to such Securities (excluding documents incorporated by
reference) has not been sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary
<PAGE> 14
14
prospectus supplement, the Registration Statement, the Prospectus or any other
prospectus relating to the Designated Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus or any other
prospectus relating to the Designated Securities, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representative expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have been advised by its
counsel that representation of such indemnified party and the indemnifying party
by the same counsel would be inappropriate (whether or not such representation
by the same counsel has been proposed) under applicable standards of
professional conduct due to actual or potential differing interests between
them, the indemnified party or parties shall have the right to select separate
counsel or participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representative in the
<PAGE> 15
15
case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault 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 on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Designated
<PAGE> 16
16
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligations to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement, the Representative may in its discretion arrange for any
Underwriter or Underwriters or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representative does not arrange for
the purchase of such Designated Securities, then the Company shall be entitled
to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representative to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
periods, the Representative notifies the Company that it has so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representative that it has so arranged for the purchase of such Designated
Securities, the Representative or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in the opinion of the Representative may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangement for the
purchase of the Designated Securities of a defaulting Underwriter
<PAGE> 17
17
or Underwriters by the Representative and the Company as provided in subsection
(a) above, the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-tenth of the aggregate principal amount
of all the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase hereunder and,
in addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of such Designated Securities which such
Underwriter agreed to purchase hereunder) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representative and the Company as provided in subsection (a)
above, the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-tenth of the aggregate principal amount of Designated
Securities, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Designated Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 8 hereof, the
representations and warranties in subsections (b) and (c) of Section 2 hereof
and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Company pursuant to Section 7 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the Company of expenses
incurred or paid in the successful defense of any action, suit or proceeding)
arising under the Act, shall not
<PAGE> 18
18
extend to the extent of any interest therein of a controlling person or partner
of an Underwriter who is a director, officer or controlling person of the
Company when the Registration Statement has become effective (or when any
amendment thereto made by the Company becomes effective) or who, with his
consent, is named in the Registration Statement as about to become a director of
the Company, except in each case to the extent that an interest of such
character shall have been determined by a court of appropriate jurisdiction as
not against public policy as expressed in the Act. Unless in the opinion of
counsel for the Company the matter has been settled by controlling precedent,
the Company will, if a claim for such indemnification is asserted, submit to a
court of appropriate jurisdiction the question whether such interest is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
11. If the applicable Pricing Agreement shall be terminated
pursuant to Section 9 hereof, the Company shall not then be under any liability
to any Underwriter with respect to the Designated Securities except as provided
in Section 6 and Section 8 hereof; but if for any other reason Designated
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the Representative for all
out-of-pocket expenses approved in writing by the Representative, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities except as provided in Section 6 and
Section 8 hereof.
12. In all dealings hereunder, the Representative shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by the Representative.
All statements, requests, notices and agreements hereunder
shall be in writing or by telegram if promptly confirmed in writing, and if to
the Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the Representative as set forth in the
applicable Pricing Agreement; and if to the Company shall be sufficient in all
respects if delivered or sent by registered mail to the address of the Company
set forth in the Registration Statement, Attention: Vice President and
Treasurer, with a copy to: Vice President and General Counsel; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by registered mail to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address has been supplied to the Company by the
Representative.
<PAGE> 19
19
13. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Company and, to the extent provided in
Section 8 and Section 10 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence in connection with each
Pricing Agreement.
15. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made
and to be performed therein.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
___________________________________
<PAGE> 20
ANNEX I
FORM OF PRICING AGREEMENT
[INSERT NAME],
As Representatives of the several
Underwriters named in Schedule I hereto,
[Insert Address]
_____________ , 199__
Dear Sirs:
Ingersoll-Rand Company (the "Company") proposes, subject to the
terms and conditions stated herein and in the Underwriting Agreement Standard
Provisions filed as an exhibit to the Company's registration statement on Form
S-3 (No. 33- ) (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty with respect to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 21
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us two counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Company for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
INGERSOLL-RAND COMPANY
By:__________________________
Accepted as of the date hereof:
[Insert Name]
By:___________________________
On behalf of each of the Underwriters
<PAGE> 22
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of
Designated Securities
to be
Underwriter Purchased
- ----------- ---------------------
<S> <C>
[Names of Underwriters] . . . . . . . . . . . . . . . . . . . . . $
----------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
----------
</TABLE>
<PAGE> 23
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[U.S.] $
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest, if any, from to [and accrued amortization,
if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest, if any, from to [and accrued amortization, if
any, from to ]
METHOD AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[same day] [next day] funds; [certificated]
[book-entry] form
INDENTURE:
Indenture, dated as of , between the Company and , as
Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of $ or an integral multiple thereof,
[on or after , at the following
<PAGE> 24
2
redemption price (expressed in percentages of principal amount).] If
[redeemed on or before , %, and if] redeemed during the
12-month period beginning
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together
in each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest to the
date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire $ principal amount of Designated
Securities on in each of the years through
at 100% of their principal amount plus accrued interest]
[, together with [cumulative] [noncumulative] redemptions at the
option of the Company to retire an additional $ principal
amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
[If Securities are extendable debt Securities, insert --
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert
date and years], at the option of the holder, at their principal
amount with accrued interest. Initial annual interest rate will be
%, and thereafter annual interest rate will be adjusted on
, and to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year maturities
as of the [insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
[If Securities are Floating Rate debt Securities, insert --
<PAGE> 25
3
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate
for -year [month] [securities] [certificates of deposit]
by and [insert names of banks].] [and the annual interest
rate [thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills plus % of Interest
Differential (the excess, if any, of (i) then current weekly average
per annum secondary market yield for -month certificates of deposit
over (ii) then current interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury bills); [from and
thereafter the rate will be the then current interest yield equivalent
plus % of Interest Differential].]
TIME OF DELIVERY:
CLOSING LOCATION:
NAME AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
<PAGE> 1
EXHIBIT 5
INGERSOLL-RAND World Headquarters
-------------------------------------
Ingersoll-Rand Company
Woodcliff Lake, New Jersey 07675-8738
June 15, 1995
Ingersoll-Rand Company
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
Re: Ingersoll-Rand Company-Registration Statement on Form S-3
Gentlemen:
I am the Vice President and General Counsel of Ingersoll- Rand
Company, a New Jersey corporation (the "Company"), and am familiar with the
proposed offering, issuance and sale by the Company of unsecured debt
securities having an aggregate principal amount of up to $750,000,000 (the
"Securities"). The Securities are described in a Registration Statement on
Form S-3 (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of l933, as amended
(the "Act").
The Securities will be issued in accordance with the provisions of the
Indenture dated as of August 1, l986, as supplemented (the "Indenture"),
between the Company and The Bank of New York, as Trustee (the "Trustee"). The
Securities will be sold from time to time as set forth in the Registration
Statement, the prospectus contained therein (the "Prospectus") and supplements
to the Prospectus.
In arriving at the opinions expressed below, I, or attorneys under my
supervision in the Law Department of the Company, have examined copies of the
Registration Statement (as proposed to be filed) and the Indenture (as
supplemented and filed as an exhibit to the Registration Statement). In
addition, I, or attorneys under my supervision in the Law Department of the
Company, have examined the originals, or copies certified or otherwise
identified to my or their satisfaction, of such corporate records of the
Company, such certificates of public officials, officers and representatives of
the Company and such other certificates and instruments, and have made such
investigations of law, as I or they have deemed appropriate as a basis for the
opinions hereinafter expressed.
<PAGE> 2
-2-
Based on the foregoing, it is my opinion that:
1. The Securities have been duly authorized by the
Company.
2. When the Securities have been duly executed,
authenticated and delivered in the form
established in or pursuant to any Board
Resolution (as such term is defined in the
Indenture) or indenture supplemental to the
Indenture, and sold as described in the
Registration Statement, including the prospectus
and supplements thereto relating to the
Securities, the Securities will constitute
legal, valid and binding obligations of the
Company entitled to the benefits provided in the
Indenture, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors'
rights generally and, as to enforceability, to
general principles of equity (regardless of
whether enforceability is considered in a
proceeding in equity or at law).
I hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to the reference to me under the
caption "Legal Matters" in the Prospectus. By giving such consent, I do not
thereby admit that I am an expert with respect to any part of the Registration
Statement, including this exhibit, within the meaning of the term "expert" as
used in the Act or the rules and regulations of the Securities and Exchange
Commission issued thereunder.
This opinion is limited to the laws (including the
corporate laws) of the State of New Jersey and the federal laws of the United
States.
Very truly yours,
/s/ Patricia Nachtigal
----------------------
Patricia Nachtigal
Vice President and
General Counsel
\I-R\state
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 31, 1995, included as part of Exhibit 13 - the Annual Report to
Shareowners for 1994, which is incorporated by reference in Ingersoll-Rand
Company's Annual Report on Form 10-K for the year ended December 31, 1994. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedule included as part of Item 14 of such Annual Report on Form
10-K. We also consent to the incorporation by reference of our report dated
March 6, 1995 relating to the consolidated financial statements of Clark
Equipment Company, which appears in the Current Report on Form 8-K of
Ingersoll-Rand Company dated June 5, 1995. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
- -------------------------
Price Waterhouse LLP
Morristown, New Jersey
June 15, 1995
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, INGERSOLL-RAND
COMPANY, a New Jersey corporation (the "Corporation"), and each of the
undersigned directors and officers of the Corporation, hereby constitute and
appoint James E. Perrella, Thomas F. McBride, Patricia Nachtigal, and each of
them severally, the undersigned's true and lawful attorneys and agents, with
power to act with or without the others and with full power of substitution and
resubstitution, to do any and all acts and things and to execute any and all
instruments which said attorneys and agents and each of them may deem necessary
or desirable to enable the Corporation to comply with the Securities Act of
1933, as amended, and any rules, regulations and requirements of the Securities
and Exchange Commission thereunder in connection with the registration under
such Act of debt securities in an aggregate principal amount of up to
$1,000,000,000 (or the equivalent thereof in foreign currency or units of two
or more currencies) of the Corporation. Such debt securities may be offered
from time to time in one or more series on terms to be determined at the time
such securities are offered for sale, including specifically, but without
limiting the generality of the foregoing, power and authority to sign the name
of the Corporation and the name of the undersigned, individually and in his or
her capacity as a director or officer of the Corporation, to one or more
Registration Statements on Form S-3 to be filed with the Securities and
Exchange Commission with respect to said securities, to any and all amendments,
including post-effective amendments, to such Registration Statements, and to
any and all instruments or documents filed as a part of or in connection with
such Registration Statements and amendments; and each of the undersigned hereby
ratifies and confirms all that said attorneys and agents and each of them shall
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF each of the undersigned has subscribed these
presents this 7th day of June, 1995.
INGERSOLL-RAND COMPANY
By: /s/ James E. Perrella /s/ Alexander H. Massad
----------------------- -----------------------
James E. Perrella Alexander H. Massad
Chairman, President and Director
Chief Executive Officer
<PAGE> 2
/s/ Donald J. Bainton /s/ James E. Perrella
----------------------- -----------------------
Donald J. Bainton James E. Perrella
Director Chairman, President and
Chief Executive Officer
/s/ Theodore H. Black /s/ John E. Phipps
----------------------- -----------------------
Theodore H. Black John E. Phipps
Director Director
/s/ Brendan T. Byrne /s/ Cedric E. Ritchie
----------------------- -----------------------
Brendan T. Byrne Cedric E. Ritchie
Director Director
/s/ Joseph P. Flannery /s/ Orin R. Smith
----------------------- -----------------------
Joseph P. Flannery Orin R. Smith
Director Director
/s/ Constance Horner /s/ Richard J. Swift
----------------------- -----------------------
Constance Horner Richard J. Swift
Director Director
/s/ H. William Lichtenberger
----------------------------
H. William Lichtenberger
Director
2
<PAGE> 1
- -------------------------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) / /
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------------
INGERSOLL-RAND COMPANY
(Exact name of obligor as specified in its charter)
New Jersey 13-5156640
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
200 Chestnut Ridge Road
Woodcliff Lake, New Jersey 07675
(Address of principal executive offices) (Zip code)
--------------------
Debt Securities
(Title of the indenture securities)
- -------------------------------------------------------------------------------
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None. (See Note on page 3.)
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND RULE 24
OF THE COMMISSION'S RULES OF PRACTICE.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed
with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
- 2 -
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
- 3 -
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of June, 1995.
THE BANK OF NEW YORK
By: Lloyd A. McKenzie
-------------------------------
Name: Lloyd A. McKenzie
Title: Assistant Vice President
- 4 -
<PAGE> 5
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31,
1995, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin .................................................. $ 3,575,856
Interest-bearing balances ........................................................................... 747,540
Securities:
Held-to-maturity securities ......................................................................... 1,283,680
Available-for-sale securities ....................................................................... 1,615,292
Federal funds sold in domestic offices of the bank .................................................... 5,577,896
Loans and lease financing receivables:
Loans and leases, net of unearned
income .................24,763,265
LESS: Allowance for loan and
lease losses ..............532,411
LESS: Allocated transfer risk
reserve .....................28,558
Loans and leases, net of unearned income, allowance, and reserve .................................... 24,202,296
Assets held in trading accounts ....................................................................... 1,502,750
Premises and fixed assets (including capitalized leases) .............................................. 618,958
Other real estate owned ............................................................................... 47,755
Investments in unconsolidated subsidiaries and associated companies ................................... 184,149
Customers' liability to this bank on acceptances outstanding .......................................... 1,018,696
Intangible assets ..................................................................................... 101,149
Other assets .......................................................................................... 1,227,291
-----------
Total assets .......................................................................................... $41,703,316
===========
LIABILITIES
Deposits:
In domestic offices ................................................................................. $18,543,633
Noninterest-bearing .......6,949,896
Interest-bearing .........11,593,737
In foreign offices, Edge and Agreement subsidiaries, and IBFs ....................................... 11,303,075
Noninterest-bearing ..........65,927
Interest-bearing .........11,237,148
Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the
bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased ............................................................................. 1,327,537
Securities sold under agreements to repurchase ...................................................... 37,400
Demand notes issued to the U.S. Treasury .............................................................. 97,827
Trading liabilities ................................................................................... 1,349,293
Other borrowed money:
With original maturity of one year or less .......................................................... 2,027,148
With original maturity of more than one year ........................................................ 313,877
Bank's liability on acceptances executed and outstanding .............................................. 1,018,848
Subordinated notes and debentures ..................................................................... 1,056,320
Other liabilities ..................................................................................... 1,435,093
-----------
Total liabilities ..................................................................................... 38,510,051
===========
EQUITY CAPITAL
Common stock .......................................................................................... 942,284
Surplus ............................................................................................... 525,666
Undivided profits and capital reserves ................................................................ 1,753,592
Net unrealized holding gains (losses) on available-for-sale securities ................................ (22,501)
Cumulative foreign currency translation adjustments ................................................ (5,776)
-----------
Total equity capital .................................................................................. 3,193,265
-----------
Total liabilities and equity capital .................................................................. $41,703,316
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
J. Carter Bacot _
Thomas A. Renyi _ Directors
Alan R. Griffith _
