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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 26, 1994
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ARVIN INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
Indiana
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(State or other jurisdiction of incorporation)
1-302 35-0550190
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(Commission File Number) (IRS Employer
Identification No.)
One Noblitt Plaza, Post Office Box 3000, Columbus, Indiana 47202-3000
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(Address of principal executive offices) (Zip Code)
Registrant's Telephone number, including area code (812) 379-3000
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Item 5. Other Events.
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On January 26, 1994, the Registrant announced the call for redemption in full
of its 8 3/8% Notes Due March 1, 1997 (the "Notes") in accordance with the
Indenture dated as of March 1, 1987 between the Registrant and Harris Trust and
Savings Bank as Trustee (the "Trustee"). On January 26, 1994, the Trustee sent
a Notice of Redemption to each holder of the Notes indicating that the
Registrant will redeem on March 1, 1994 all of its then issued and outstanding
Notes at a price equal to 100% of the principal amount to be redeemed. Holders
of record of the Notes on February 15, 1994 will be entitled to payment on March
1, 1994 of accrued and unpaid interest to the redemption date.
On February 2, 1994, the Registrant announced its unaudited operating results
for the fiscal year and the quarter ended January 2, 1994. Annual sales for
fiscal year 1993 were $1.94 billion, compared to annual sales of $1.89 billion
for fiscal year 1992. Net earnings for fiscal 1993 were $40.3 million compared
to $39.9 million in 1992 before the cumulative effect of changes in accounting
principles. For the fourth quarter of fiscal 1993, sales were $469 million and
net earnings were $10.3 million compared to sales of $455 million and net
earnings of $9.4 million for the comparable period in fiscal 1992.
The Registrant will be filing with the Securities and Exchange Commission a
Preliminary Prospectus Supplement and related Prospectus dated February 3, 1994
regarding a proposed offering of $75,000,000 of its _____% Notes due February
15, 2001 that have been registered under the Securities Act of 1933 on Form S-3
(No. 33-41242). A copy of the form of _____% Notes due February 15, 2001 is
attached hereto as Exhibit 4. The terms of the proposed offering of such _____%
Notes due February 15, 2001 will be established in an Underwriting Agreement
among the Registrant, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Lehman Brothers Inc. (the "Underwriting Agreement"). A copy of
the form of the Underwriting Agreement is attached hereto as Exhibit 1.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits
1) Form of Underwriting Agreement among the Registrant,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Lehman Brothers Inc.
4) Form of ___ % Notes due February 15, 2001.
12) Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: February 3, 1994 ARVIN INDUSTRIES, INC.
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(Registrant)
/s/ Richard A. Smith
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Richard A. Smith
Vice President--Finance,
Chief Financial Officer
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EXHIBIT INDEX
Page Number
Number Description In This Report
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1 Form of Underwriting Agreement among the Registrant,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner
& Smith Incorporated and Lehman Brothers Inc.
4 Form of ___ % Notes due February 15, 2001.
12 Statement Regarding Computation of Ratio of Earnings
to Fixed Charges.
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Exhibit 1
ARVIN INDUSTRIES, INC.
(an Indiana corporation)
Debt Securities
UNDERWRITING AGREEMENT - BASIC PROVISIONS
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February __, 1994
To: The Underwriters named in
the within-mentioned Terms
Agreement
Dear Sirs:
Arvin Industries, Inc., an Indiana corporation (the "Company"), proposes to
issue and sell up to $75,000,000 aggregate principal amount of its Debt
Securities (the "Securities") in one or more offerings on terms determined at
the time of sale. The Securities will be issued under an indenture dated as of
July 3, 1990 (the "Indenture"), between the Company and Harris Trust and Savings
Bank, as trustee (the "Trustee"). Each issue of Securities may vary as to
aggregate principal amount, maturity date or dates, interest rate or rates and
timing of payments thereof, redemption provisions and sinking fund requirements,
if any, and any other variable terms which the Indenture contemplates may be set
forth in the Securities as issued from time to time.
Whenever the Company determines to make an offering of Securities, it will
enter into an agreement substantially in the form of Exhibit A hereto (the
"Terms Agreement") providing for the sale of such Securities to, and the
purchase and offering thereof by, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and Lehman Brothers Inc. (together, the
"Representatives"), and each of the other underwriters named therein (the
"Underwriters" or "you", which terms shall include the Representatives whether
acting alone in the sale of Securities or as members of an underwriting
syndicate). The Terms Agreement relating to each offering of Securities shall
specify the principal amount of Securities to be issued and their terms not
otherwise specified in the Indenture, the name or names of the Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof) and the principal amount of Securities which each severally agrees to
purchase, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price and the time
and place of delivery and payment. Each offering of Securities will be governed
by this Agreement, as supplemented by
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the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon each Underwriter participating
in the offering of such Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-41242) relating to
the Securities and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933 (the "1933 Act") and has filed such
amendments thereto as may have been required to the date hereof. Such
registration statement, as amended, has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939 (the "1939 Act"). Such registration statement, as amended, and the
prospectus relating to the sale of Securities by the Company constituting a part
thereof, including all documents incorporated therein by reference, as from time
to time amended, updated or supplemented pursuant to the Securities Exchange Act
of 1934 (the "1934 Act"), the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively; provided,
however, that a supplement of the Prospectus contemplated by Section 3(a) hereof
(a "Prospectus Supplement", which term shall include any preliminary Prospectus
Supplement) shall be deemed to have supplemented the Prospectus only with
respect to the offering of Securities to which it relates.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
SECTION 1. Representations and Warranties. The Company represents and
warrants to you as of the date hereof, as of the date of the applicable Terms
Agreement and as of the Closing Time, as hereinafter defined, under such Terms
Agreement (in each case, the "Representation Date") as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied and will comply in all material respects with
the 1933 Act, the rules and regulations of the Commission under the 1933 Act
(the
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"1933 Act Regulations") and the Trust Indenture Act of 1939, as amended (the
"1939 Act") and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations"). The Registration Statement, at the time
the Registration Statement became effective (or, if an amendment to the
Registration Statement or an annual report on Form 10-K has been filed by the
Company with the Commission subsequent to the effectiveness of the
Registration Statement, then at the time of the most recent such filing) did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective (unless the term "Prospectus" refers
to a prospectus which has been or will be provided to the Underwriters by the
Company for us in connection with the offering of Securities which differs
from the Prospectus on file with the Commission at the time the Registration
Statement became effective, in which case, at the time it is provided to the
Underwriters for such use), and as of the applicable Representation Date, did
not and will not contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement
or Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter, or on behalf of any
Underwriter by the Representatives, expressly for use in the Registration
Statement or Prospectus.
(b) The documents incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter
are filed or last amended, as the case may be, with the Commission, complied
and will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder (the "1934 Act
Regulations") and, when read together and with the other information in the
Prospectus, at the time the Registration Statement and any amendments thereto
became or become effective and at each Representation Date, did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
or are made, not misleading.
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(c) The accountants who certified the financial statements and supporting
schedules included or incorporated by reference in the Registration Statement
and the Prospectus are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(d) The financial statements (other than quarterly or other unaudited
interim financial statements) included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as at the dates
indicated and the results of their operations for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent (except as otherwise stated
therein) basis; the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein; and the Company's ratios of earnings to fixed
charges (actual and, if any, pro forma) included in the Prospectus and in
Exhibit 12 to the Registration Statement have been calculated in compliance
with Item 503(d) of Regulation S-K of the Commission. Any quarterly or other
unaudited interim financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus, have been prepared in compliance with the applicable requirements
of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and have been prepared on a basis substantially consistent
(except as otherwise stated therein) with that of the applicable audited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus, and such unaudited interim
financial statements contain all adjustments necessary to present a fair
statement of the results of operations for the periods reported. The
financial information and statistical data set forth in the Prospectus under
the captions "Selected Financial Data" and "Capitalization" are fairly stated
in all material respects in relation to the consolidated financial statements
of the Company from which they have been derived.
(e) Since the respective dates as to which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein
(including information contained in documents subsequently incorporated by
reference in the Registration Statement or the Prospectus), (1) there has
been no material adverse change in the condition, financial or otherwise, or
in the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not
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arising in the ordinary course of business; (2) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise; and
(3) except for regular dividends, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock.
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Indiana with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not in the aggregate have a material adverse effect on the business or
assets of the Company and its subsidiaries considered as one enterprise.
(g) Each Significant Subsidiary of the Company (as that term is used in
Rule 405 of the 1933 Act Regulations) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except where
the failure to so qualify would not in the aggregate have a material adverse
effect on the business or assets of the Company and its subsidiaries
considered as one enterprise; all of the issued and outstanding capital stock
of each Significant Subsidiary shown as owned by the Company on Schedule A to
this Agreement has been duly authorized and validly issued and is fully paid
and nonassessable and is owned by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim.
(h) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus); the issued and outstanding
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Common Shares, par value $2.50 per share, of the Company (the "Common
Shares"), have been duly authorized and validly issued and are fully paid and
nonassessable; and the Common Shares conform to all statements relating
thereto contained in the Prospectus and the Registration Statement.
(i) Neither the Company nor any of its subsidiaries is in violation of its
charter or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any material
contract, indenture, joint venture agreement, mortgage, loan agreement, note,
lease or other instrument to which it or its property may be bound; and the
execution and delivery of this Agreement, the applicable Terms Agreement, the
Indenture and the Securities and the consummation of the transactions
contemplated herein and therein have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of, or a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, joint venture agreement,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which any of them may be
bound, or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any applicable law, administrative regulation or
administrative or court decree.
(j) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries' principal suppliers,
manufacturers or contractors which might be expected to result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
(k) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any
of its subsidiaries, which is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed therein), or which might
materially and adversely affect the consummation of this Agreement or the
applicable Terms Agreement or, except in cases in which such
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consequences are remote, which might result in any material adverse change in
the condition, financial or otherwise, or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or, except in cases in which such consequences are remote, which
might materially and adversely affect the properties or assets thereof; all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their property is the subject which
are not described in the Registration Statement or the Prospectus, including
ordinary routine litigation incidental to the Company's business, are,
considered in the aggregate, not material to the Company and its subsidiaries
considered as one enterprise; and there are no contracts or documents of the
Company or any of its subsidiaries which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(l) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, the patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, the "Intellectual
Property") presently employed by them in connection with the business now
operated by them, except where the failure to own or possess, or inability to
so acquire, such Intellectual Property would not result in any material
adverse change in the condition, financial or otherwise, or in the assets,
earnings, affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any material adverse
change in the condition, financial or otherwise, or in the assets, earnings,
affairs or business prospects of the Company and its subsidiaries considered
as one enterprise.
(m) No authorization, approval or consent of any court or governmental
authority or agency is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act or the 1933 Act Regulations or state securities laws for
the Securities and the qualification of the Indenture under the 1939 Act.
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(n) The Company and its subsidiaries possess such certificates, authorities
or permits issued by the appropriate state, federal or foreign governmental
or regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to possess such certificates,
authorities or permits would not materially and adversely affect the conduct
of the business, operations, financial condition or income of the Company and
its subsidiaries considered as one enterprise; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would materially and adversely affect the
conduct of the business, operations, financial condition or income of the
Company and its subsidiaries considered as one enterprise.
(o) This Agreement has been, and after its execution and delivery, the
applicable Terms Agreement will be, duly authorized, executed and delivered
by the Company.
(p) The Indenture has been duly authorized by the Company and has been
duly qualified under the 1939 Act and duly executed and delivered by the
Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(q) The Securities have been duly authorized for issuance and sale
pursuant to this Agreement and the applicable Terms Agreement (or will have
been so authorized prior to each issuance of Securities) and, at the
applicable Closing Time, will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor specified in the applicable
Terms Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles, and will be
in the form contemplated by, and entitled to the benefits of, the Indenture.
(r) The Securities and the Indenture will conform in all material respects
to the respective statements relating
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thereto contained in the Prospectus and will be in substantially the
respective forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(s) The Securities rank and will rank on a parity with all unsecured
indebtedness (other than subordinated indebtedness) of the Company that is
outstanding on the date hereof or that may be incurred hereafter, and senior
to all subordinated indebtedness of the Company that is outstanding on the
date hereof or that may be incurred hereafter.
(t) The Company meets, and on the effective date of the Registration
Statement met and on each Representation Date will meet, the requirements for
use of Form S-3 under the 1933 Act and the 1933 Act Regulations.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with an offering
of Securities shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. Purchase and Sale. The several commitments of the Underwriters to
purchase Securities pursuant to any Terms Agreement shall be deemed to have been
made on the basis of the representations and warranties herein contained and
shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made at the place set forth in the
applicable Terms Agreement, or at such other place as shall be agreed upon by
the Representatives and the Company, on the fifth business day (unless postponed
in accordance with the provisions of Section 10) following the date of the
applicable Terms Agreement or such other time not later than ten business days
following the date of the applicable Terms Agreement as shall be agreed upon in
writing by the Representatives and the Company (each such time and date being
referred to as a "Closing Time"). Payment shall be made to the Company by
certified or official bank check or checks in New York Clearing House or similar
next day funds payable to the order of the Company against delivery to the
Representatives for the respective accounts of the Underwriters of the
Securities to be purchased by them. Such Securities shall be in such
denominations and registered in such names as the Representatives may request in
writing at least two business days prior to the applicable Closing Time. Such
Securities, which may be in temporary form, will be made available for
examination and packaging by the Representatives on or before the first business
day prior to the applicable Closing Time.
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SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Immediately following the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Securities covered thereby and their terms not otherwise specified
in the Indenture, the names of the Underwriters and the principal amount of
Securities which each severally has agreed to purchase, the names of the
Representatives, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the selling
concession and reallowance, if any, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of
the 1933 Act Regulations and will furnish to the Underwriters named therein
as many copies of the Prospectus, such Prospectus Supplement and any
preliminary Prospectus Supplement as such Underwriters shall reasonably
request.
(b) From the date of a Terms Agreement, and for so long as a Prospectus is
required to be delivered in connection with the sale of Securities covered by
such Terms Agreement, the Company will notify the Representatives
immediately, and confirm the notice in writing, (i) of the effectiveness of
any amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act which will be incorporated
by reference into the Registration Statement or Prospectus, (iii) of the
receipt of any comments or other communications from the Commission with
respect to the Registration Statement, the Prospectus or any Prospectus
Supplement, (iv) of any request by the Commission for any amendment to the
Registration Statement of any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
(c) From the date of a Terms Agreement, and for so long as a Prospectus is
required to be delivered in connection with the sale of Securities covered by
such Terms Agreement, the Company will give the Representatives notice
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of its intention to file any amendment to the Registration Statement or any
amendment or supplement to the Prospectus (including through the filing of
documents under the 1934 Act or a prospectus filed pursuant to Rule 424(b)
which differs from the prospectus on file at the Commission), whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing, and
will not file any such amendment or supplement to which the Representatives
or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to the Representatives as many signed and
conformed copies of the registration statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act) as the Representatives
may reasonably request, and will also deliver to the Representatives a
conformed copy of the Registration Statement and each amendment thereto for
each of the Underwriters.
(e) If at any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities any event shall occur or
condition exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or
prospective purchaser or if it shall be necessary, in the opinion of either
such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by filing
documents pursuant to the 1934 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration
Statement comply with such requirements.
(f) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Representatives may designate, and will maintain such qualifications in
effect for as long as may be required for
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the distribution of the Securities. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in which the
Securities have been qualified as provided above.
(g) With respect to each sale of Securities, the Company will make
generally available to its security holders as soon as practicable, but not
later than 60 days after the close of the period covered thereby, earnings
statements (in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering twelve-month periods beginning, in each case, not later
than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158) of the Registration Statement
relating to such Securities that satisfies the provisions of Section 11(a) of
the 1933 Act and the 1933 Act Regulations.
(h) The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus and the Prospectus
Supplement relating to such Securities under "Use of Proceeds".
(i) The Company will use its best efforts to list the Securities on the
exchanges, if any, specified in the related Terms Agreement.
(j) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) For a period of five years after each Closing Time, the Company will
furnish to the Representatives copies of all reports and communications
delivered to shareholders or holders of any of the Securities as a class and
will also furnish copies of all reports (excluding exhibits, unless requested
by the Representatives) filed with the Commission on Forms 8-K, 10-Q and
10-K.
(l) For a period of 21 days from the date of any Terms Agreement, the
Company will not, without the Representatives' prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the sale
of, enter into an agreement to sell, or otherwise dispose of, any Securities
described in such Terms Agreement or securities similar to such Securities,
or any securities convertible into or exchangeable or exercisable for any
such Securities or any such similar securities, except for
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Securities sold pursuant to such Terms Agreement, and the Company will not
file a registration statement under the 1933 Act with respect to any such
securities or securities similar to such securities of the Company held by
others.
SECTION 4. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement and each Terms
Agreement, including (i) the preparation, printing, filing and delivery of the
registration statement (as originally filed) and all amendments thereto, (ii)
the preparation, issuance and delivery to the Underwriters of the certificates
for the Securities, (iii) the fees and disbursements of the Company's counsel
and accountants, (iv) the qualification of the Securities under applicable state
securities laws in accordance with the provisions of Section 3(f), including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (v) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
registration statement (as originally filed) and any amendments thereto, and of
the Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of the Indenture and any Blue Sky Survey
and Legal Investment Survey, (vii) the fees of rating agencies, (viii) the fees
and expenses, if any, incurred in connection with the listing of the Securities
on any securities exchange, (ix) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee in connection with the
Indenture and the Securities, and (x) the fees, if any, of the National
Association of Securities Dealers, Inc.
If a Terms Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or Section 9(i), the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Securities pursuant to any Terms Agreement are subject
to the accuracy of the representations and warranties on the part of the Company
herein contained, to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions hereof, to the
performance by the Company of its obligations, covenants and agreements
hereunder, and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement
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shall have been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission and any request on the part of the Commission
for additional information shall have been complied with to the satisfaction
of counsel for the Underwriters, (ii) the rating assigned by any nationally
recognized securities rating agency to any debt securities or preferred
shares of the Company as of the date of the applicable Terms Agreement shall
not have been lowered since the execution of such Terms Agreement and no such
agency shall have publicly announced that it has placed any of such debt
securities or preferred shares on what is commonly termed a "watch list" for
possible downgrading, and (iii) there shall not have come to the attention of
the Representatives any facts that cause them, after disclosing such facts
to, and discussing them with, the Company, reasonably to believe that the
Prospectus, together with the applicable Prospectus Supplement, at the time
it was required to be delivered to a purchaser of the Securities, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
(b) At the applicable Closing Time, the Representatives shall have
received:
(1) The favorable opinion, dated as of the applicable Closing Time, of
Schiff Hardin & Waite, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Indiana and a
certificate of existence has been issued with respect thereto as of a
recent date pursuant to Section 23-1-18-9 of the Indiana Business
Corporation Law.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus.
(iii) To the best of their knowledge and information, the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not in the
aggregate have a material adverse effect on the business or
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assets of the Company and its subsidiaries considered as one
enterprise.
(iv) Each Significant Subsidiary of the Company incorporated in a
jurisdiction in the United States of America and set forth on Schedule
A to this Agreement has been duly incorporated and is validly existing
as a corporation under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus; all of the issued and
outstanding capital stock of each such subsidiary which is held by the
Company or any direct or indirect subsidiary of the Company has been
duly authorized and validly issued.
(v) This Agreement and the applicable Terms Agreement have been duly
authorized, executed and delivered by the Company.
(vi) The Registration Statement is effective under the 1933 Act and,
to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(vii) At the time the Registration Statement became effective and
at the Representation Date, the Registration Statement (other than the
financial statements, supporting schedules or other financial or
statistical information or data included or incorporated by reference
therein, as to which no opinion need be rendered) complied as to form
in all material respects with the requirements of the 1933 Act, the
1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, and
nothing has come to their attention that leads them to believe that
the Registration Statement (other than the financial statements,
supporting schedules and other financial or statistical information or
data included or incorporated by reference therein, as to which no
opinion need be rendered), at the time it became effective or at the
applicable Representation Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to
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make the statements therein not misleading or that the Prospectus, as
amended or supplemented at the date of the applicable Terms Agreement
or at the applicable Closing Time, including the documents
incorporated by reference therein (other than the financial
statements, supporting schedules and other financial or statistical
information or data included or incorporated by reference therein, as
to which no opinion need be rendered) included 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, not misleading.
(viii) To the best of their knowledge and information, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than
those disclosed in the Prospectus or in any document incorporated by
reference therein.
(ix) Each document filed pursuant to the 1934 Act (other than the
financial statements, supporting schedules and other financial or
statistical information or data included therein, as to which no
opinion need be rendered) and incorporated by reference in the
Prospectus at the Representation Date, complied when so filed (or, if
amended, when and as amended prior to the date of the Prospectus) as
to form in all material respects with the 1934 Act and the 1934 Act
Regulations.
(x) To the best of their knowledge and information, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described, referred to or
incorporated by reference in the Registration Statement at the
Representation Date or to be filed as exhibits thereto other than
those described, referred to or incorporated by reference therein or
filed as exhibits thereto, and the descriptions thereof or references
thereto in the Registration Statement at the Representation Date are
correct.
(xi) No authorization, approval, consent or order of any court or
governmental authority or agency is required in connection with the
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consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under the 1933 Act, the 1933
Act Regulations, the 1934 Act, the 1934 Act Regulations or state
securities laws and the qualification of the Indenture under the 1939
Act; the execution and delivery by the Company of this Agreement, the
applicable Terms Agreement (including this Agreement as incorporated
by reference therein), the Indenture and the Securities and the
consummation of the transactions contemplated herein and therein will
not result in any violation of the provisions of the charter or by-
laws of the Company; and to the best of their knowledge and
information, the execution and delivery by the Company of this
Agreement, the applicable Terms Agreement (including this Agreement as
incorporated by reference therein), the Indenture and the Securities
and the consummation of the transactions contemplated herein and
therein will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument identified to such counsel
by the Company as being material and to which the Company or any of
its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in any
violation of any applicable law, administrative regulation or any
administrative or court order or decree known to them.
(xii) The Indenture has been duly and validly authorized, executed
and delivered by the Company, is substantially in the form
incorporated by reference as an exhibit to the Registration Statement
at the time the Registration Statement became effective, and (assuming
the due authorization, execution and delivery thereof by the Trustee)
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors'
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rights generally or by general equitable principles.
(xiii) The Securities covered by the applicable Terms Agreement are
in the form contemplated by the Indenture, have been duly and validly
authorized by the Company and, when executed and authenticated by the
Trustee in the manner provided in the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee)
and delivered against payment of the purchase price therefor specified
in the applicable Terms Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
(xiv) The Indenture is qualified under the 1939 Act.
(xv) The Indenture and the Securities covered by the applicable
Terms Agreement conform in all material respects to the descriptions
thereof, subject to the limitations stated therein, contained in the
Prospectus and the applicable Prospectus Supplement.
(xvi) The information in the Prospectus under "Description of Debt
Securities" and in the applicable Prospectus Supplement under
"Description of Notes" (or any similar heading for the section of the
applicable Prospectus Supplement describing the Securities), to the
extent that it constitutes descriptions of the Indenture and
Securities, has been reviewed by them and is correct, subject to the
limitations stated therein, in all material respects.
(2) The favorable opinion, dated as of the applicable Closing Time, of
Ronald R. Snyder, Esq., Vice President, General Counsel and Secretary of
the Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
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(i) To the best of his knowledge and information, the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not in the
aggregate have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one enterprise.
(ii) To the best of his knowledge and information, each Significant
Subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority
to own, lease or operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus, and is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify would not in the
aggregate have a material adverse effect on the business or assets of
the Company and its subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each such Significant
Subsidiary shown as owned by the Company on Schedule A to this
Agreement has been duly authorized and validly issued, is fully paid
and nonassessable, and such interest is owned by the Company, directly
or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim.
(iii) Nothing has come to such counsel's attention that leads him
to believe that the Registration Statement, at the time it became
effective or at the applicable Representation Date, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or
supplemented at the date of the applicable Terms Agreement or at the
applicable Closing Time, included an untrue statement of a material
fact or omitted to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
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(iv) To the best of his knowledge and information, no authorization,
approval consent or order of any court or governmental authority or
agency is required in connection with the consummation by the Company
of the transactions contemplated by this Agreement, except such as may
be required under the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations or state securities laws and the
qualification of the Indenture under the 1939 Act.
(v) To the best of his knowledge and information, except as
described in the Registration Statement, at the time it became
effective or at the applicable Representation Date, there is no
action, suit or proceeding before or by any court or governmental
agency or body now pending or threatened against or affecting the
Company or any of its subsidiaries in which it is probable that such
action, suit or proceeding, except in cases in which such consequences
are considered remote, will have any material adverse effect on the
condition, financial or otherwise, or in the earnings, affairs,
assets, properties or business prospects of the Company and its
subsidiaries considered as one enterprise.
(vi) To the best of his knowledge and information, no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument described, referred to, or filed or incorporated by
reference in the Registration Statement, at the time it became
effective or at the applicable Representation Date, or the Company's
Annual Report on Form 10-K for the year ended January 3, 1993, which
defaults in the aggregate are material to the Company and its
subsidiaries considered as one enterprise.
(3) The favorable opinion or opinions, dated as of the applicable
Closing Time, of Mayer, Brown & Platt, counsel for the Underwriters, with
respect to the incorporation of the Company, the validity of the
Securities being sold at the Closing Time, the
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Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request, and such counsel shall have received
such papers and information as they reasonably request to enable them to
pass upon such matters. In giving their opinion, Mayer, Brown & Platt
may rely as to matters of Indiana corporate law upon the opinion of
Schiff Hardin & Waite.
(c) At the applicable Closing Time there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
any material adverse change in the condition, financial or otherwise, or in
the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the President or a Vice President of the Company and of the
Chief Financial Officer, Chief Accounting Officer or Treasurer of the
Company, dated as of such Closing Time, to the effect that (i) there has been
no such material adverse change; (ii) the representations and warranties in
Section 1 are true and correct with the same force and effect as though
expressly made again at and as of such Closing Time; (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Closing Time; and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened
by the Commission.
(d) The Representatives shall have received from Price Waterhouse and any
other independent certified public accountants who have reviewed financial
statements included in the Registration Statement, the Prospectus or the
applicable Prospectus Supplement letters, dated as of the applicable Terms
Agreement and as of the applicable Closing Time, in form and substance
satisfactory to the Representatives to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and
the 1933 Act Regulations.
(ii) It is their opinion that the financial statements and
supporting schedules included or incorporated by reference in the
Registration Statement and covered by their opinion therein
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comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations, the
1934 Act and the 1934 Act Regulations.
(iii) Based upon limited procedures set forth in detail in such
letter, nothing has come to their attention which causes them to
believe that:
(A) The unaudited financial statements and supporting schedules
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act, the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations or are not presented in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus;
(B) The amounts set forth under the caption "Selected Financial
Data" (or other similar caption) in the Prospectus were not
determined on a basis substantially consistent with that used in
determining the corresponding amounts in the Company's audited
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus; or
(C) At a specified date not more than five days prior to the
date of the letters, there has been any change in the capital
stock of the Company or any increase in the consolidated long-term
debt of the Company and its subsidiaries or any decrease in
consolidated net current assets or net assets as compared with the
amounts shown in the Company's most recent consolidated balance
sheet
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included or incorporated by reference in the Registration
Statement and the Prospectus or, during the period from the date
of such balance sheet to a specified date not more than five days
prior to the date of the letters, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated net sales, net earnings or primary net earnings per
share of the Company and its subsidiaries, except in all instances
for changes, increases or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur.
(iv) In addition to the examination referred to in their opinions
and the limited procedures referred to in clause (iii) above, they
have carried out certain specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and
Prospectus and which have been specified by the Representatives, and
have found such amounts, percentages and financial information to be
in agreement with the relevant accounting, financial and other records
of the Company and its subsidiaries identified in such letter.
(e) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance
to the Representatives and counsel for the Underwriters.
(f) At the applicable Closing Time, the Securities shall have been duly
approved for listing and trading on the exchange specified in the related
Terms Agreement, subject only to notice of issuance.
If any condition specified in this Section shall not have been fulfilled when
and as required to be fulfilled, the
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applicable Terms Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to the applicable Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4.
SECTION 6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including all documents
incorporated by reference therein, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any preliminary prospectus, Prospectus Supplement or the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by you) reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent
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that any such expense is not paid under (1) or (2) above;
provided, however, that this indemnity shall not apply to any loss, claim,
damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto) or
any preliminary prospectus, Prospectus Supplement or the Prospectus (or any
amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus, Prospectus Supplement or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus, Prospectus Supplement or
the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be
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unenforceable by the indemnified parties although applicable in accordance with
its terms, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the relevant Prospectus Supplement bears
to the initial public offering price of the Securities appearing thereon and the
Company is responsible for the balance; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls an Underwriter within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement and
the applicable Terms Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of the applicable Terms Agreement
(including this Agreement as incorporated by reference therein), or any
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of the Company, and shall survive delivery of any Securities
to the Underwriters.
SECTION 9. Termination. The Representative may terminate the applicable
Terms Agreement (including this Agreement, as incorporated by reference
therein), by notice to the Company, at any time at or prior to the applicable
Closing Time (i) if there has been, since the date of such Terms Agreement or
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other calamity or crisis, the effect of which is
such as to make it, in the Representatives' sole judgment, impracticable to
market the Securities or enforce contracts for the sale of the Securities,
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or (iii) if trading in the Common Shares has been suspended by the Commission,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal, New
York, Indiana or Illinois authorities. In the event of any such termination,
such termination shall be without liability of any party to any other party
except as provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6 and 7 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail at the
applicable Closing Time to purchase the Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligations under the applicable Terms
Agreement (including this Agreement as incorporated by reference therein)
bear to the underwriting obligations of all such non-defaulting Underwriters,
or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Securities to be purchased pursuant
to such Terms Agreement, such Terms Agreement (including this Agreement as
incorporated by reference therein) shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
the applicable Terms Agreement or this Agreement.
In the event of any such default which does not result in a termination of the
applicable Terms Agreement (including this
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Agreement as incorporated by reference therein), either the Representatives or
the Company shall have the right to postpone the applicable Closing Time for a
period not exceeding seven days in order to effect any required changes in the
Registration Statement, Prospectus or applicable Prospectus Supplement, or in
any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives as provided in the applicable Terms Agreement.
Notices to the Company shall be directed to it at One Noblitt Plaza, Post Office
Box 3000, Columbus, Indiana 47202, Attention: Ronald R. Snyder, Esq., Vice
President, General Counsel and Secretary, with a copy to Schiff Hardin & Waite,
7200 Sears Tower, Chicago, Illinois 60606, Attention: Frederick L. Hartmann,
Esq.
SECTION 12. Parties. The applicable Terms Agreement and this Agreement shall
inure to the benefit of and be binding upon the Underwriters and the Company and
their respective successors. Nothing expressed or mentioned in the applicable
Terms Agreement or this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of the applicable
Terms Agreement or this Agreement or any provision therein or herein contained.
The applicable Terms Agreement and this Agreement and all conditions and
provisions thereof and hereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
-28-
<PAGE>
SECTION 13. Governing Law and Time. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in said State.
Except as otherwise set forth herein or in the applicable Terms Agreement,
specified times of day refer to New York City time.
Very truly yours,
ARVIN INDUSTRIES, INC.
By:_______________________________
Title:____________________________
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
LEHMAN BROTHERS INC.
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: ______________________________
Authorized Signatory
-29-
<PAGE>
Schedule A
<TABLE>
<CAPTION>
Jurisdiction of
Subsidiary Name Organization
- --------------- ---------------
<S> <C>
Maremont Corporation Delaware
Arvin International Holding, Inc. Indiana
Roll Coater, Inc. Indiana
Arvin Cheswick B.V. The Netherlands
Arvin International U.K., PLC United Kingdom
Arvin Ride Control Products, Inc. Canada
Arvin Cheswick International B.V. The Netherlands
</TABLE>
<PAGE>
Exhibit A
ARVIN INDUSTRIES, INC.
Debt Securities
TERMS AGREEMENT
---------------
_____________, 1994
To: Arvin Industries, Inc.
One Noblitt Plaza
Post Office Box 3000
Columbus, Indiana 47202
Dear Sirs:
We understand that Arvin Industries, Inc., an Indiana corporation (the
"Company"), proposes to issue and sell $75,000,000 aggregate principal amount of
its Debt Securities. Subject to the terms and conditions set forth herein or
incorporated by reference herein, the underwriters named below (the
"Underwriters") hereby offer to purchase such Securities.
The Securities to be purchased by the Underwriters, which are to be issued
under an Indenture dated as of July 3, 1990, between the Company and Harris
Trust and Savings Bank, as Trustee, shall have the following terms:
Title: __% Notes due February __, 2001.
Principal Amount to be Issued: $75,000,000.
Date of Maturity: February __, 2001.
Interest Rate: _____%.
Interest Payment Dates: February ___ and August ___ of each year.
Date From Which Interest Accrues: February __, 1994.
Public Offering Price: ____%, plus accrued interest from February __, 1994.
Purchase Price: ____%, plus accrued interest from February __, 1994
(payable in next-day funds).
Redemption Provisions: None.
A-1
<PAGE>
Sinking Fund Provisions: None.
Closing Date and Location: _______ ___, 1994, 9:00 a.m.
(Chicago time), Mayer, Brown & Platt, 190 South LaSalle
Street, Chicago, Illinois 60603.
Listing Requirements: None.
Additional underwriters, if any: None.
Current Ratings: Moody's Investors Services - __; Standard & Poor's
Corporation - __.
All of the provisions contained in the document entitled "Arvin Industries,
Inc. Debt Securities, Underwriting Agreement -Basic Provisions," dated as of
February ____, 1994, a copy of which is attached hereto as Annex A, are herein
incorporated by reference in their 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. Terms defined in such document are used herein as therein defined.
Each Underwriter severally agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the principal amount of Securities set
forth opposite its name.
<TABLE>
<CAPTION>
PRINCIPAL
NAME AMOUNT
---- ---------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith $
Incorporated
Lehman Brothers Inc. $
</TABLE>
Any notice by the Company to the Underwriters pursuant to this Terms Agreement
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication addressed to: Merrill
Lynch & Co., 5500 Sears Tower, Chicago, Illinois 60606; Attention: John M.
Pratt.
A-2
<PAGE>
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
LEHMAN BROTHERS INC.
By: MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: ______________________________
Authorized Signatory
Accepted:
ARVIN INDUSTRIES, INC.
By:_____________________
Title:_______________
A-3
<PAGE>
EXHIBIT 4
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION, TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED REGISTERED
No. FXR- $
ARVIN INDUSTRIES, INC.
__% NOTE DUE FEBRUARY 15, 2001
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
February ___, 1994 _____ % February 15, 2001
<PAGE>
Arvin Industries, Inc., an Indiana corporation (the "Company"), for value
received, hereby promises to pay to
, or registered assigns, the principal sum of ____________________ on the
Maturity Date specified above and to pay interest thereon at the Interest Rate
per annum specified above, until the principal hereof is paid or duly made
available for payment, semiannually on February 15 and August 15 (each an
"Interest Payment Date") in each year commencing on the first Interest Payment
Date next succeeding the Original Issue Date specified above, to the registered
holder of such Note on the Regular Record Date with respect to such Interest
Payment Date, and on the Maturity Date shown above. Interest on this Note will
accrue from the most recent Interest Payment Date to which interest has been
paid or duly provided for or, if no interest has been paid, from the Original
Issue Date specified above, until the principal hereof has been paid or duly
made available for payment. If the Maturity Date or an Interest Payment Date
falls on a day which is not a Business Day as defined below, principal or
interest payable with respect to such Maturity Date or Interest Payment Date
will be paid on the next succeeding Business Day with the same force and effect
as if made on such Maturity Date or Interest Payment Date, as the case may be,
and no interest on such payment shall accrue for the period from and after such
Maturity Date or Interest Payment Date. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, subject to certain
exceptions, be paid to the Person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the Regular Record
Date for such interest, which shall be the February 1 or August 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more predecessor
Notes) is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to the Holder of this Note not less than ten days prior to such
Special Record Date, or be paid at any time in any other lawful manner, all as
more fully provided in the Indenture. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, on which banks in The City of New York are
not required or authorized by law to close.
Payment of the principal of and interest on this Note will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register; subject in each
case to the terms of any agreement with a Person designated as a Depositary of
this Note pursuant to the Indenture.
This __% Note due February 15, 2001, is one of a duly authorized series of
Securities (hereinafter called the "Securities") of the Company issued and to be
issued under an Indenture dated as of July 3, 1990 (herein called the
"Indenture") between the Company and Harris Trust and Savings Bank, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of
the Company and the Trustee
-2-
<PAGE>
and the Holders of the Notes and the terms upon which the Notes are, and are to
be, authenticated and delivered.
This Note is not redeemable at the option of the Company and is not repayable
at the option of the Holder prior to maturity.
Interest payments on this Note will include interest accrued to but excluding
the Interest Payment Date or the Maturity Date, as the case may be. Interest
payments for this Note will be computed and paid on the basis of a 360-day year
of twelve 30-day months.
The Indenture provides that so long as the Notes are outstanding, the Company
will not, and will not cause or permit a Restricted Subsidiary to, create,
incur, assume or guarantee any indebtedness existing on the date of the
Indenture which would constitute Secured Debt if it were secured by a Security
Interest in a Principal Facility unless the Debt Securities will be secured
equally and ratably (subject to applicable priorities of payment) by the
Security Interest securing such Secured Debt or indebtedness, except that the
Company and its Restricted Subsidiaries may incur certain Secured Debt without
so securing the Notes. Among such permitted Secured Debt is indebtedness
secured by (i) certain Security Interests to secure payment of the cost of
acquisition, construction, development or improvement of property; (ii) Security
Interests on property at the time of acquisition assumed by the Company or a
Restricted Subsidiary, or on the property or on the outstanding shares or
indebtedness of a corporation or firm at the time it becomes a Restricted
Subsidiary or is merged into or consolidated with the Company or a Restricted
Subsidiary, or the Company or a Restricted Subsidiary acquires the properties of
such corporation or firm as an entirety or substantially as an entirety; (iii)
Security Interests arising from conditional sales agreements or title retention
agreements with respect to property acquired by the Company or any Restricted
Subsidiary; (iv) Security Interests securing indebtedness of a Restricted
Subsidiary owing to the Company or to another Restricted Subsidiary; (v)
mechanics' and other statutory liens arising in the ordinary course of business
(including construction of facilities) in respect of obligations which are not
due or which are being contested in good faith; (vi) liens for taxes,
assessments or governmental charges not yet due or for taxes, assessments or
governmental charges which are being contested in good faith; (vii) Security
Interests (including judgment liens) arising in connection with legal
proceedings so long as such proceedings are being contested in good faith and,
in case of judgment liens, execution thereon is stayed; (viii) certain
landlords' liens on fixtures; (ix) Security Interests to secure partial,
progress, advance or other payments or indebtedness incurred for the purpose of
financing construction on or improvement of property subject to such Security
Interests; and (x) certain Security Interests in favor, or made at the request,
of governmental bodies. Additionally, such permitted Secured Debt includes
(with certain limitations) any extension, renewal or refunding, in whole or in
part, of any Secured Debt permitted at the time of the original incurrence
thereof. In addition to the foregoing, the Company and its Restricted
Subsidiaries may incur Secured Debt, without equally and ratably securing the
Debt Securities, if the sum of (a) the amount of Secured Debt entered into after
the date of the Indenture and otherwise prohibited by the Indenture plus (b) the
aggregate value of Sale and Leaseback Transactions entered into after the date
of the Indenture and otherwise prohibited by the Indenture does not exceed ten
percent of Consolidated Net Tangible Assets.
The Indenture provides that so long as the Notes are outstanding the Company
will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction unless (a) the Company or such Restricted Subsidiary
would be entitled to incur Secured Debt
-3-
<PAGE>
permitted by the Indenture only by reason of the provision described in the last
sentence of the preceding paragraph equal in amount to the net proceeds of the
property sold or transferred or to be sold or transferred pursuant to such Sale
and Leaseback Transaction and secured by a Security Interest on the property to
be leased without equally and ratably securing the Notes, or (b) the Company or
a Restricted Subsidiary shall apply within 180 days after the effective date of
such Sale and Leaseback Transaction, an amount equal to such net proceeds (x) to
the acquisition, construction, development or improvement of properties,
facilities, or equipment which are, or upon such acquisition, construction,
development or improvement will be, a Principal Facility or Facilities or a part
thereof or (y) to the redemption of Debt Securities or (z) to the repayment of
Senior Funded Debt of the Company or of any Restricted Subsidiary (other than
the Senior Funded Debt owed to any Restricted Subsidiary), or in part to such
acquisition, construction, development or improvement and in part to such
redemption and/or repayment. In lieu of applying an amount equal to such net
proceeds to such redemption the Company may within 180 days after such sale or
transfer, deliver to the Trustee Debt Securities (other than Debt Securities
made on the basis of a reduction in a mandatory sinking fund payment) for
cancellation and thereby reduce the amount to be applied to the redemption of
the Notes by an amount equivalent to the aggregate principal amount of the Notes
delivered.
The Indenture provides that so long as the Notes are outstanding, the Company
will not, and will not cause or permit any Restricted Subsidiary to, transfer
any Principal Facility to any Subsidiary which was not a Restricted Subsidiary
at the time of such transfer unless it shall apply within 180 days of the
effective date of such transaction an amount equal to the fair value of such
Principal Facility at the time of such transfer (i) to the acquisition,
construction, development or improvement of properties, facilities or equipment
which are, or upon such acquisition, construction, development or improvement
will be, a Principal Facility or Facilities or a part thereof or (ii) to the
redemption of the Notes or (iii) to the repayment of Senior Funded Debt of the
Company or any Restricted Subsidiary (other than Senior Funded Debt owed to any
Restricted Subsidiary), or in part to such acquisition, construction,
development or improvement and in part to such redemption and/or repayment. In
lieu of applying all or any part of such amount to such redemption the Company
may, within 180 days of such transfer, deliver to the Trustee Debt Securities
(other than the Notes made the basis of a reduction in a mandatory sinking fund
payment) for cancellation and thereby reduce the amount to be applied to the
redemption of the Notes by an amount equivalent to the aggregate principal
amount of the Debt Securities so delivered.
Except as may be provided in the Indenture, if an Event of Default with
respect to the Notes shall occur and be continuing, the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Notes may declare
the principal of all the Notes due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the
-4-
<PAGE>
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Note.
The Indenture provides that the Company, at the Company's option, (a) will be
discharged from any and all obligations in respect of the Notes (except for
certain obligations to register the transfer of or exchange Notes, replace
stolen, lost or mutilated Notes and maintain paying agencies) or (b) need not
comply with certain provisions of the Indenture, in each case if the Company
deposits, in trust, with the Trustee money or U.S. Government Obligations which,
with respect to U.S. Government Obligations, through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
in an amount in cash sufficient to pay all of the principal of, premium, if any,
and interest on the Securities on the dates such payments are due in accordance
with the terms of such Notes and certain other conditions are satisfied.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Note at the
time, place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the Security Register of
the Company upon surrender of this Note for registration of transfer at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company, and this Note duly executed by, the Holder
hereof or by his attorney duly authorized in writing and thereupon one or more
new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum
denominations of $1,000 or any amount in excess thereof which is an integral
multiple thereof. As provided in the Indenture, and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate
principal amount of Notes in authorized denominations, as requested by the
Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed in such State.
-5-
<PAGE>
All capitalized terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by the
Trustee under the Indenture referred to herein by the manual signature of one of
its authorized officers, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile.
ARVIN INDUSTRIES, INC.
By:_______________________________
By:_______________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the within-
mentioned Indenture.
Harris Trust and Savings Bank, as Trustee
By:_______________________________
Authorized Officer
-6-
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to the applicable laws or regulations.
TEN COM -- as tenants in common
UNIF GIFT MIN ACT -- . . . . . . . . . . . Custodian . . . . . . . . . . .
(Minor)
Under Uniform Gifts to Minors Act
. . . . . . . . . . . . . . . . . .
State
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
Additional abbreviations may also be used though not in the above list.
-7-
<PAGE>
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
Please Insert Social Security or Other
Identifying Number of Assignee:
___________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING ZIP CODE OF ASSIGNEE:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________________________ attorney to transfer
said Note on the books of the Company, with full power of substitution in the
premises.
Dated: __________________ _________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written above on the
within instrument in every particular, without
alteration or enlargement, or any change whatever.
-8-
<PAGE>
EXHIBIT 12
ARVIN INDUSTRIES, INC.
Computation of Ratio of Earnings to Fixed Charges
(in thousands, except ratios)
<TABLE>
<CAPTION>
Fiscal Year Ended Nine Months Ended
January 1, December 31, December 30, December 29, January 3, October 4, October 3,
1989 1989 1990 1991 1993 1992 1993
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings before income taxes............ 26,927 34,358 56,970 38,835 66,482 51,655 48,843
Adjustments:
Earnings of less-than-fifty-percent-
owned affiliates.................... (2,652) (2,999) (4,547) (5,408) (8,282) (5,901) (6,448)
Losses of less-than-fifty-percent-
owned affiliates.................... 1,609 1,469 288 339 433 377 1,484
Dividends of less-than-fifty-percent-
owned affiliates.................... 469 974 1,139 2,018 324 324 1,004
Minority interest in the income/(loss)
of majority-owned subsidiaries that
have fixed charges.................. 1,438 1,659 658 431 (539) (517) (346)
Adjusted Earnings Before Income Taxes... 27,791 35,461 54,508 36,215 58,418 45,938 44,537
Fixed Charges:
Interest expense...................... 21,752 42,231 45,154 44,334 40,823 31,128 28,416
Portion of rents representative of
Interest Factor..................... 3,381 5,200 5,853 5,349 5,399 3,928 3,528
Total Fixed Charges................... 25,133 47,431 51,007 49,683 46,222 35,056 31,944
Earnings Before Income taxes and
Fixed Charges......................... 52,924 82,892 105,515 85,898 104,640 80,994 76,481
Ratio of Earnings to Fixed Charges...... 2.11 1.75 2.07 1.73 2.26 2.31 2.39
</TABLE>
