<PAGE>
As filed with the Securities and Exchange Commission on April 20, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
CASE CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 3523 76-0433811
(State or Other (Primary Standard (I.R.S. Employer
Jurisdiction Industrial Identification
of Incorporation or Classification Code Number)
Organization) Number)
700 State Street
Racine, Wisconsin 53404
(414) 636-6011
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
----------------
Richard S. Brennan
General Counsel and Secretary
Case Corporation
700 State Street, Racine, Wisconsin 53404
(414) 636-6011
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copy to:
Elizabeth A. Raymond
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering.
[_] _______
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
[_] _______
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title of Each Class of Amount Maximum Aggregate Amount of
Securities to be to be Offering Price Offering Registration
Registered Registered Per Unit(1) Price(1) Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6 1/4% Notes due December
1, 2003, Series B....... $300,000,000 100% $300,000,000 $83,400
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Calculated based on the book value of the securities to be received by the
registrant in the exchange in accordance with Rule 457(f)(2) under the
Securities Act of 1933.
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. Case +
+may not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED APRIL 20, 1999
PROSPECTUS
Case Corporation
Offer to Exchange up to $300,000,000 of its
6 1/4% Notes due December 1, 2003, Series B
for all of its outstanding
6 1/4% Notes due December 1, 2003, Series A
-----------
. The exchange offer expires at 5:00 p.m., New York City time, on ,
1999, unless extended.
. The exchange offer is not subject to any conditions other than that the
exchange offer will not violate any applicable law or interpretation of the
staff of the Securities and Exchange Commission and that there be no pending
or threatened proceeding that would reasonably be expected to impair Case's
ability to proceed with the exchange offer.
. All outstanding notes that are validly tendered and not validly withdrawn
will be exchanged.
. Tenders of outstanding notes may be withdrawn at any time before 5:00 p.m. on
the date of expiration of the exchange offer.
. The exchange of notes will not be a taxable exchange for U.S. federal income
tax purposes.
. Case will not receive any proceeds from the exchange offer.
. The terms of the new notes to be issued are substantially identical to your
old notes, except that the new notes will not have transfer restrictions and
you will not have registration rights.
. There is no established trading market for the new notes and Case does not
intend to apply for listing of the new notes on any securities exchange.
-----------
For a discussion of certain factors that you should consider before you
participate in the exchange offer, see "Risk Factors" beginning on page 13.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
-----------
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Forward-Looking Statements................................................. 3
Prospectus Summary......................................................... 5
Risk Factors............................................................... 13
Where You Can Find More Information........................................ 14
Incorporation of Information Case Files with the SEC....................... 14
Case Corporation........................................................... 15
Use of Proceeds............................................................ 15
The Exchange Offer......................................................... 15
Description of Notes....................................................... 25
Certain Federal Income Tax Considerations.................................. 35
Plan of Distribution....................................................... 36
Legal Matters.............................................................. 37
Experts.................................................................... 37
</TABLE>
----------------
You should rely only on the information contained or incorporated by
reference in this prospectus. Case has not authorized any other person to
provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. Case is not making an
offer to sell these securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing in this
prospectus, as well as information Case previously filed with the SEC and
incorporated by reference, is accurate as of the date on the front of those
documents only. Case's business, financial condition, results of operations and
prospects may have changed since those dates.
This prospectus incorporates important business and financial information
about Case that is not included in or delivered with this prospectus. See
"Incorporation of Information Case Files with the SEC." You may obtain this
information without charge upon written or oral request to:
Case Corporation
Attention: Kevin J. Hallagan, Associate General Counsel
and Assistant Secretary
700 State Street
Racine, Wisconsin 53404
Telephone: (414) 636-6011
To obtain timely delivery of any of this information you must make your
request at least five business days prior to the expiration of the exchange
offer. The date by which you must make your request is ,
1999.
2
<PAGE>
FORWARD-LOOKING STATEMENTS
Case has made forward-looking statements in this prospectus and in the
documents incorporated by reference in this prospectus. Forward-looking
statements involve risks and uncertainties that could cause actual results to
differ materially from those in the forward-looking statements. Forward-looking
statements are statements other than statements of historical facts that
address activities, events or developments that Case expects or anticipates
will or may occur in the future, including such items as business strategy and
measures to implement strategy, competitive strengths, goals, growth of Case's
business and operations, plans and references to future success. Forward-
looking statements also include any other statements that include words such as
"anticipate," "believe," "plan," "estimate," "expect," "intend" and other
similar expressions.
Forward-looking statements are based on certain assumptions and analyses
Case has made in light of its experience and its perception of historical
trends, current conditions, expected future developments and other factors Case
believes are appropriate. Whether actual results and developments will conform
with Case's expectations and predictions is subject to a number of risks and
uncertainties, including, among others, the following:
. crop production and commodity prices are strongly affected by weather and
can fluctuate significantly;
. housing starts and other construction activity are sensitive to interest
rates and government spending;
. general economic and capital market conditions;
. the cyclical nature of Case's business;
. foreign currency movements;
. Case's access to credit and Case's customers' access to credit;
. political uncertainty and civil unrest in various areas of the world;
. pricing;
. product initiatives and other actions taken by competitors;
. disruptions in production capacity;
. excess inventory levels;
. the effect of changes in laws and regulations (including government
subsidies and international trade regulations);
. the effect of conversion to the Euro;
. technological difficulties (including Year 2000);
. changes in environmental laws; and
. employee and labor relations.
All of the forward-looking statements made in this prospectus are qualified
by these cautionary statements, and there can be no assurance that the actual
results or developments Case has anticipated will be realized. Even if the
results and developments in Case's forward-looking statements are substantially
realized, there is no assurance that they will have the expected consequences
to or effects on Case or its business or operations.
Further information concerning factors that could significantly impact
expected results is included in:
. the following sections of Case's 1998 Annual Report on Form 10-K, as
amended by Amendment No. 1 on Form 10-K/A and filed with the SEC:
. Business--Employees;
. Business--Environmental Matters;
. Business--Significant International Operations;
. Business--Seasonality and Production Schedules;
. Business--Competition;
3
<PAGE>
. Legal Proceedings; and
. Management's Discussion and Analysis of Financial Condition and
Results of Operations;
. Case's Current Reports on Form 8-K dated January 26, 1999 and April 19,
1999, as filed with the SEC; and
. documents Case files with the SEC under the Securities Exchange Act of
1934 that are incorporated by reference in this prospectus.
4
<PAGE>
PROSPECTUS SUMMARY
This summary highlights selected information from this prospectus and may
not contain all of the information that is important to you. This prospectus
includes or incorporates by reference a description of the exchange offer,
specific terms of the notes Case is offering and information regarding Case's
business and detailed financial data. Case encourages you to read this
prospectus in its entirety. You should carefully consider the matters included
under "Risk Factors" before you participate in the exchange offer.
THE EXCHANGE OFFER
Case sold $300,000,000 of its 6 1/4% Notes due December 1, 2003, Series A to
the initial purchasers on December 7, 1998. The initial purchasers resold those
notes in reliance on Rule 144A, Regulation S and other exemptions under the
Securities Act of 1933.
Case entered into a registration rights agreement with the initial
purchasers on December 7, 1998 in which Case agreed, among other things, to:
. file a registration statement with the SEC relating to the exchange offer
on or before April 21, 1999;
. deliver to you this prospectus;
. cause the registration statement, which includes this prospectus, to
become effective on or before June 6, 1999; and
. complete the exchange offer during the 45-day period after the
registration statement becomes effective.
You are entitled to exchange your old notes for new registered 6 1/4% Notes
due December 1, 2003, Series B with substantially identical terms as the old
notes (except for transfer restrictions and registration rights). If the
exchange offer is not completed on or before the 45th day after the
registration statement becomes effective, the interest rate on your notes will
be increased. You should read the discussion under the heading "The Exchange
Offer--Purpose and Effect; Registration Rights" and "Description of Notes" for
further information regarding the new notes that Case is offering to exchange
for your old notes.
Case believes that you may resell the new notes issued in the exchange offer
without compliance with the registration and prospectus delivery provisions of
the 1933 Act, subject to the conditions described under "The Exchange Offer."
You should read this section for further information regarding the exchange
offer.
CASE CORPORATION
Case Corporation is a leading worldwide designer, manufacturer, marketer and
distributor of farm equipment and light- to medium-sized construction equipment
and offers a broad array of financial products and services. Case's principal
executive office is located at 700 State Street, Racine, Wisconsin 53404.
Case's telephone number is (414) 636-6011. Case maintains a web site at
http://www.casecorp.com.
TERMS OF THE EXCHANGE OFFER
The exchange offer relates to the exchange of up to $300 million aggregate
principal amount of old Series A notes for an equal aggregate principal amount
of new Series B notes. The new notes will be obligations of Case and will be
governed by the same indenture that governs the old notes. The form and terms
of the new notes are substantially identical to the form and terms of the old
notes, except that the new notes have been registered under the 1933 Act and
are not entitled to the benefits of the registration rights agreement that was
executed as part of the offering of the old notes. The registration rights
agreement provides for registration
5
<PAGE>
rights with respect to the old notes and for the payment of additional interest
on the old notes if Case fails to meet its registration obligations under the
agreement.
New Notes..................... Case is offering registered 6 1/4% Notes due
December 1, 2003, Series B for your notes. The
terms of the new notes and your old notes are
substantially identical except:
. the new notes will not contain restrictions
on transfer; and
. except in limited circumstances, your rights,
including your right to receive additional
interest, under the registration rights
agreement will terminate.
The Exchange Offer............ Case is offering to exchange $1,000 in
principal amount of the new notes for each
$1,000 in principal amount of your old notes.
As of the date of this prospectus, $300 million
aggregate principal amount of the old notes are
outstanding.
Expiration Date............... You have until 5:00 p.m., New York City time,
on , 1999, to validly tender your
old notes if you want to exchange your old
notes for new notes. Case may extend that date
under certain conditions.
Conditions of the Exchange
Offer; Extensions;
Amendments....................
You are not required to tender any minimum
principal amount of your old notes in order to
participate in the exchange offer. If you
validly tender, and do not validly withdraw,
your old notes, your old notes will be
exchanged for new notes if the following
conditions are met:
. the exchange offer does not violate any
applicable laws or applicable interpretation
of the staff of the SEC; and
. no action or proceeding relating to the
exchange offer is taken that would impair
Case's ability to proceed with the exchange
offer.
Case may delay or extend the exchange offer and
if any of the above conditions are not met,
Case may terminate the exchange offer. You will
be notified of any delay, extension or
termination.
Case may also waive any condition or amend the
terms of the exchange offer. If Case materially
amends the exchange offer, Case will notify
you.
Interest...................... You will receive interest on the new notes from
the date interest was last paid on your old
notes. If no interest was paid on your old
notes, you will receive interest from December
7, 1998. If your old notes are exchanged for
new notes, you will not receive any accrued
interest on your old notes.
Procedures for Tendering Old
Notes; Special Procedures for
Beneficial Owners............. If you want to participate in the exchange
offer, you must transmit a properly completed
and signed letter of transmittal, and all other
documents required by the letter of
transmittal, to the exchange agent. Please send
these materials to the exchange agent at the
address set forth in the accompanying letter of
6
<PAGE>
transmittal prior to 5:00 p.m., New York City
time, on , 1999. You must also send either:
. certificates of your old notes;
. a timely confirmation of book-entry transfer
of your old notes into the exchange agent's
account at The Depository Trust Company; or
. the items required by the guaranteed delivery
procedures described below.
If you are a beneficial owner of your old notes
and your old notes are registered in the name
of a nominee, such as a broker, dealer,
commercial bank or trust company, and you wish
to tender your old notes in the exchange offer,
you should instruct your nominee to promptly
tender the old notes on your behalf.
If you are a beneficial owner and you want to
tender your old notes on your own behalf, you
must, before completing and executing the
letter of transmittal and delivering your old
notes, make appropriate arrangements to either
register ownership of your old notes in your
name or obtain a properly completed bond power
from the registered holder of your old notes.
By executing the letter of transmittal, you
will represent to Case that:
. you are not Case's "affiliate" (as defined in
Rule 405 of the 1933 Act);
. you are not a broker-dealer that acquired
your notes directly from Case in order to
resell them pursuant to Rule 144A under the
1933 Act or any other available exemption
under the 1933 Act;
. if you are a broker-dealer that acquired your
notes as a result of market-making or other
trading activities you will deliver a
prospectus in connection with any resale of
new notes;
. you will acquire the new notes in the
ordinary course of your business; and
. you are not participating, do not intend to
participate and have no arrangement or
understanding with any person to participate,
in the distribution of the new notes.
If your notes are not accepted for exchange for
any reason, they will be returned to you at
Case's expense.
Guaranteed Delivery If you wish to tender your old notes and:
Procedures....................
. your old notes are not immediately available;
. you are unable to deliver your old notes or
any other documents that you are required to
deliver to the exchange agent on time; or
7
<PAGE>
. you cannot complete the procedures for
delivery by book-entry transfer on time;
then you may tender your old notes according to
the guaranteed delivery procedures that are
discussed in the letter of transmittal and in
"The Exchange Offer--Guaranteed Delivery
Procedures."
Acceptance of Old Notes and
Delivery of New Notes.........
When all conditions of the exchange offer are
satisfied or waived, then Case will accept old
notes that you have properly tendered on time.
The new notes will be delivered promptly after
Case accepts the old notes.
Withdrawal Rights............. Tenders of old notes may be withdrawn at any
time prior to 5:00 p.m., New York City time, on
the expiration date.
The Exchange Agent............ The Bank of New York is the exchange agent. Its
address and telephone number are set forth in
"The Exchange Offer--The Exchange Agent;
Assistance."
Fees and Expenses............. Case will pay all expenses relating to the
exchange offer and compliance with the
registration rights agreement. Case will also
pay certain transfer taxes, if applicable,
relating to the exchange offer.
Resales of New Notes.......... Case believes that the new notes may be offered
for resale, resold and otherwise transferred by
you without further compliance with the
registration and prospectus delivery
requirements of the 1933 Act, if:
. you acquire the new notes in the ordinary
course of your business;
. you are not participating, and have no
arrangement or understanding with any person
to participate, in a distribution (within the
meaning of the 1933 Act) of the new notes;
. you are not a broker-dealer who purchased old
notes from Case to resell them pursuant to
Rule 144A under the 1933 Act or any other
available exemption under the 1933 Act; and
. you are not Case's "affiliate" (as defined in
Rule 405 under the 1933 Act).
You should read this prospectus under the
heading "The Exchange Offer--Resales of New
Notes," for a more complete description of why
Case believes you can freely transfer new notes
received in the exchange offer without
registration or delivery of a prospectus.
All broker-dealers who are issued new notes for
their own accounts in exchange for old notes
that were acquired as a result of market-making
or other trading activities must acknowledge
that they will deliver a prospectus meeting the
requirements of the 1933 Act in connection with
any resale of the new notes. If you are a
broker-dealer and required to deliver a
prospectus, you may use this prospectus for an
offer to resell, a resale or other transfer of
the new notes.
8
<PAGE>
Federal Income Tax The issuance of the new notes will not
Consequences.................. constitute an exchange for federal income tax
purposes. You will not recognize any gain or
loss upon receipt of the new notes. See "The
Exchange Offer--Certain Federal Income Tax
Consequences."
Registration Rights In connection with the sale of the old notes,
Agreement..................... Case entered into a registration rights
agreement with the initial purchasers of the
old notes that grants the holders of the old
notes registration rights. As a result of
making this exchange offer, Case will have
fulfilled most of its obligations under the
registration rights agreement. If you do not
tender your old notes in the exchange offer,
you will not have any further registration
rights under the registration rights agreement
or otherwise unless you were not eligible to
participate in the exchange offer or do not
receive freely transferrable new notes in the
exchange offer. See "The Exchange Offer--
Purpose and Effect; Registration Rights." If
you are eligible to participate in the exchange
offer and do not tender your initial notes, you
will continue to hold the untendered old notes,
which will continue to be subject to
restrictions on transfer under the 1933 Act.
CONSEQUENCES OF NOT EXCHANGING OLD NOTES
If you do not exchange your old notes for new notes in the exchange offer,
your old notes will continue to be subject to the restrictions on transfer
contained in the legend on the old notes. In general, the old notes may not be
offered or sold unless they are registered under the 1933 Act. However, they
may be offered or sold under an exemption from, or in a transaction not subject
to, the 1933 Act and applicable state securities laws. Case does not currently
anticipate that it will register the old notes under the 1933 Act.
SUMMARY OF TERMS OF THE NEW NOTES
The form and term of the new notes are substantially identical to the form
and term of the old notes, except that the new notes:
. will be registered under the 1933 Act;
. will not, except under limited circumstances, have registration rights or
rights to additional interest; and
. will not bear any legends restricting transfer.
The new notes will evidence the same debt as the old notes and will be
governed by the same Indenture under which the old notes were issued.
<TABLE>
<S> <C>
$300,000,000 of 6 1/4% Notes due December 1, 2003,
Issue............................... Series B.
Interest Payment Dates.............. June 1 and December 1 of each year.
Redemption.......................... None.
Sinking Fund........................ None.
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
Ranking............................. The new notes will be Case's unsecured obligations
and will rank equally with Case's other existing
unsecured and unsubordinated debt. The new notes are
effectively subordinate to all of Case's secured
debt and all indebtedness of Case's subsidiaries
with respect to their assets (aggregating
approximately $3,319 million at March 31, 1999).
Restrictive Covenants............... The indenture governing the new notes requires that
if Case issues funded debt secured by certain liens,
the new notes must be equally secured with such
debt. There are also covenants restricting Case's
ability to enter into sale and leaseback
transactions, merge, consolidate and transfer
substantially all of its assets. These restrictions,
however, are subject to a number of qualifications.
See "Description of Notes."
</TABLE>
10
<PAGE>
SELECTED FINANCIAL DATA
The following selected historical financial data as of and for each of the
five years ended December 31, 1998, has been derived from the audited
consolidated and combined financial statements of Case and the Case business of
Tenneco, Inc. For all periods after June 24, 1994, the financial data reflects
the consolidated results of Case Corporation. For all prior periods, the
financial data reflects the combined results of the Case business of Tenneco,
Inc. This information should be read in conjunction with Item 7, "Management's
Discussion and Analysis of Financial Condition and Results of Operations," and
the Case Financial Statements and the related notes included in Item 8 of
Case's Annual Report on Form 10-K for the year ended December 31, 1998, as
amended by Amendment No. 1 on Form 10-K/A, which is incorporated by reference
into this prospectus. See "Incorporation of Information Case Files with the
SEC." Certain reclassifications have been made to conform prior years'
financial statements to the 1998 presentation.
The selected financial data as of and for the three months ended March 31,
1999 and March 31, 1998 is unaudited and was derived from the consolidated
financial statements of Case Corporation. In the opinion of management, the
financial results as of and for the three months ended March 31, 1999 and March
31, 1998 include all adjusting entries (consisting only of normal recurring
adjustments) necessary to present fairly the information set forth therein.
Results for an interim period may not be indicative of the results of
operations for any future period. This information should be read in
conjunction with Case's first quarter 1999 press release disclosing Case's
operating results for that period as filed in a Current Report on Form 8-K
dated April 19, 1999, which is incorporated by reference into this prospectus.
<TABLE>
<CAPTION>
Three months
ended
March 31, Years ended December 31,
-------------- -------------------------------------------
1999 1998 1998 1997 1996 1995 1994
------ ------ ------- ------- ------- ------- -------
(dollars in millions, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Net sales............... $1,084 $1,297 $ 5,738 $ 5,718 $ 5,104 $ 4,824 $ 4,180
Interest income and
other.................. 117 84 411 306 305 281 225
Cost of goods sold...... 932 1,019 (4,700) (4,447) (3,953) (3,779) (3,260)
Selling, general and
administrative
expenses............... 174 146 (655) (570) (544) (553) (576)
Research, development
and engineering
expenses............... 49 52 (224) (196) (193) (156) (127)
Restructuring charge
(1).................... -- -- (132) -- -- -- --
Interest expense........ 75 47 (240) (170) (160) (174) (160)
Other, net.............. 30 15 (92) (47) (25) (16) (24)
------ ------ ------- ------- ------- ------- -------
Income (loss) before
taxes and cumulative
effect of changes in
accounting principles
and extraordinary
items.................. (59) 102 106 594 534 427 258
Income tax provision
(benefit).............. (11) 33 42 191 185 81 93
------ ------ ------- ------- ------- ------- -------
Income (loss) before
cumulative effect of
changes in accounting
principles and
extraordinary items.... (48) 69 64 403 349 346 165
Cumulative effect of
changes in accounting
principles (2)......... -- -- -- -- -- (9) (29)
Extraordinary items (3). -- -- -- -- (33) -- (5)
------ ------ ------- ------- ------- ------- -------
Net income (loss)....... $ (48) $ 69 $ 64 $ 403 $ 316 $ 337 $ 131
====== ====== ======= ======= ======= ======= =======
Basic earnings (loss)
per share before
cumulative effect of
changes in accounting
principles and
extraordinary items:
Basic earnings (loss)
per share............. $(0.68) $ 0.91 $ 0.78 $ 5.36 $ 4.73 $ 4.80 N.A.
Pro forma basic
earnings per share.... N.A. N.A. N.A. N.A. N.A. N.A. $ 2.31
Diluted earnings (loss)
per share before
cumulative effect of
changes in accounting
principles and
extraordinary items:
Diluted earnings (loss)
per share............. $(0.68) $ 0.88 $ 0.76 $ 5.11 $ 4.49 $ 4.60 N.A.
Pro forma diluted
earnings per share.... N.A. N.A. N.A. N.A. N.A. N.A. $ 2.24
Cash dividends declared
per common share....... $ 0.05 $ 0.05 $ 0.20 $ 0.20 $ 0.20 $ 0.20 $ 0.10
Balance Sheet Data (at
the end of year or
three month period):
Working capital......... $2,070 $1,071 $ 1,499 $ 730 $ 510 $ 386 $ 717
Total assets............ 8,863 7,388 8,700 6,981 6,059 5,469 5,052
Long-term debt.......... 3,591 1,681 3,080 1,404 1,119 889 1,443
Other long-term
obligations and
redeemable preferred
stock.................. 661 518 633 508 492 594 603
Equity.................. 1,982 2,250 2,110 2,197 1,904 1,520 1,181
Ratio of earnings to
fixed charges and
preferred stock
dividends (4).......... -- 2.83x 1.33x 3.94x 3.73x 3.03x 2.38x
Deficiency of earnings
to fixed charges and
preferred stock
dividends (4).......... $ (62) -- -- -- -- -- --
Ratio of earnings to
fixed charges (without
preferred stock
dividends) (4)......... -- 3.00x 1.39x 4.15x 3.96x 3.17x 2.45x
Deficiency of earnings
to fixed charges
(without preferred
stock dividends) (4)... $ (60) -- -- -- -- -- --
</TABLE>
11
<PAGE>
- --------
(1) During the fourth quarter of 1998, Case recorded a restructuring charge of
$132 million, $96 million after tax, related to the 1999 closure of its
Hamilton, Ontario, and Hugo, Minnesota, manufacturing facilities, as well
as other actions that include a worldwide workforce reduction of 2,600
people. For additional information, see Item 7, "Management's Discussion
and Analysis of Financial Condition and Results of Operations," and Note 5
to the Case Financial Statements included in Item 8 of Case's Annual Report
on Form 10-K for the year ended December 31, 1998, which is incorporated
into this prospectus by reference.
(2) Effective January 1, 1995, Case adopted Statement of Financial Accounting
Standards ("SFAS") No. 106, "Employer's Accounting for Postretirement
Benefits Other Than Pensions" for its non-U.S. plans, which resulted in a
charge of $9 million on a pre-tax and after-tax basis to reflect the
cumulative effect of the accounting change. Effective January 1, 1994, Case
adopted SFAS No. 112, "Employer's Accounting for Postemployment Benefits,"
which resulted in a charge of $29 million after tax to reflect the
cumulative effect of the accounting change.
(3) In 1996, Case sold $300 million aggregate principal amount of its 7.25%
unsecured and unsubordinated notes due 2016 pursuant to a shelf
registration statement filed with the SEC in June 1995. The net proceeds
from the offering, together with cash and additional borrowings under
Case's credit facilities, were used to exercise Case's option to repurchase
for cash all of its 10.5% Senior Subordinated Notes and pay accrued
interest on those notes. As a result of the repurchase, Case recorded an
extraordinary charge of $22 million after tax.
As a result of establishing new credit facilities in 1996, Case recorded an
$11 million extraordinary, after-tax charge for the write-off of
unamortized bank fees related to the original bank agreements established
at the time of Case's initial public offering in June 1994. In 1994, Case
recorded an extraordinary loss of $5 million after tax for the redemption
premium resulting from the repayment of approximately $519 million of high
interest-bearing debt.
(4) For the computation of the ratio of earnings to fixed charges, "earnings"
has been calculated by adding income before taxes, cumulative effect of
changes in accounting principles and extraordinary items, interest expense,
fixed charges of 50% owned, unconsolidated subsidiaries and the portion of
rents representative of an interest factor and amortization of capitalized
debt expense. Fixed charges consist of interest expense, interest
capitalized, fixed charges of 50% owned, unconsolidated subsidiaries, the
portion of rents representative of an interest factor, amortization of
capitalized debt expense and, where indicated, preferred stock dividends.
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RISK FACTORS
You should consider carefully the risk factors below as well as the other
information in this prospectus before tendering your old notes in the exchange
offer.
Consequences of Exchange and Failure to Exchange
If you do not exchange your old notes for new notes in the exchange offer,
your old notes will continue to be subject to the restrictions on transfer as
stated in the legend on the old notes. In general, such old notes may not be
offered or sold, unless they are:
. registered under the 1933 Act;
. offered or sold pursuant to an exemption from the 1933 Act and applicable
state securities laws; or
. offered or sold in a transaction not subject to the 1933 Act and
applicable state securities laws.
Case does not currently anticipate that it will register the old notes under
the 1933 Act. In addition, holders who do not tender their old notes, except
for certain instances involving the initial purchasers or holders of old notes
who are not eligible to participate in the exchange offer or who do not receive
freely transferrable new notes pursuant to the exchange offer, will not have
any further registration rights under the registration rights agreement or
otherwise and will not have rights to receive additional interest.
Based on interpretations by the SEC staff in no-action letters issued to
third parties in other transactions that are similar to the exchange offer,
Case believes that new notes may be offered for resale, resold and otherwise
transferred by a holder that participates in the exchange offer and is not a
broker-dealer without further compliance with the registration and prospectus
delivery requirements of the 1933 Act, unless:
. you are Case's "affiliate" (as defined in Rule 405 under the 1933 Act);
. you did not acquire the new notes in the ordinary course of your
business;
. you intend to participate in the exchange offer for the purpose of
distributing (within the meaning of the 1933 Act) new notes; or
. you are a broker-dealer who purchased old notes from Case to resell them
pursuant to Rule 144A under the 1933 Act or any other available exemption
under the 1933 Act.
Each broker-dealer that receives new notes for its own account pursuant to the
exchange offer must acknowledge that it acquired the old notes for its own
account as a result of market-making activities or other trading activities and
must agree that it will deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of those new notes. Case has not,
however, sought its own no-action letter from the SEC staff. Although there has
been no indication of any change in the staff's position, there is no guarantee
that the staff would make a similar determination with respect to the resale of
the new notes.
If you cannot accurately make all of the representations required by the
letter of transmittal, either on behalf of yourself or any other person on
whose behalf you are tendering old notes, then you:
. will not be able to rely on the interpretations of the staff of the SEC
in the above-mentioned no-action letters;
. will not be permitted or entitled to tender old notes in the exchange
offer; and
. must comply with the registration and prospectus delivery requirements of
the 1933 Act in connection with any sale or other transfer of old notes
unless such sale is made pursuant to an exemption from such requirements.
Market Consequences of Failure to Exchange Old Notes
If old notes are tendered and accepted for exchange pursuant to the exchange
offer, the trading market for old notes that remain outstanding may be
significantly more limited. As a result, the liquidity of the old notes not
tendered for exchange may be adversely affected. The extent of the market for
old notes and the availability
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of price quotations would depend upon a number of factors, including the number
of holders of old notes remaining and the interest of securities firms in
maintaining a market in the old notes. An issue of securities with a smaller
outstanding market value available for trading, which is called the "float,"
may command a lower price than would a comparable issue of securities with a
greater float. As a result, the market price for old notes that are not
exchanged in the exchange offer may be affected adversely as old notes
exchanged pursuant to the exchange offer reduce the float. The reduced float
also may make the trading price of the old notes that are not exchanged more
volatile.
WHERE YOU CAN FIND MORE INFORMATION
Case files reports, proxy statements and other information with the SEC.
Case's SEC filings are available over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document Case files at the
SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 to obtain information on the operation of
the public reference room.
Case has filed a registration statement on Form S-4 relating to the exchange
offer and the new notes with the SEC under the 1933 Act. For further
information on Case, the exchange offer and the new notes, you should refer to
the registration statement and its exhibits. This prospectus summarizes
material provisions of contracts and other documents that Case refers you to.
Since this prospectus may not contain all the information that you may find
important, you should review the full text of these documents. Case has
included copies of these documents as exhibits to the registration statement or
incorporated them by reference into this prospectus.
INCORPORATION OF INFORMATION CASE FILES WITH THE SEC
Case is "incorporating by reference" certain information it files with the
SEC into this prospectus which means:
. incorporated documents are considered part of the prospectus;
. Case can disclose important information to you by referring you to those
documents; and
. information that Case files with the SEC will automatically update and
supersede this prospectus.
Case incorporates by reference each of the documents listed below, which
Case filed with the SEC under the 1934 Act:
. Annual Report on Form 10-K for the year ended December 31, 1998, as
amended by Amendment No. 1 on Form 10-K/A, and
. Current Reports on Form 8-K dated January 26, 1999 and April 19, 1999.
Case also incorporates by reference each of the following documents that it
will file with the SEC after the date of the initial filing of the registration
statement with the SEC and prior to effectiveness of the registration statement
or after the date of this prospectus but before the termination of the exchange
offer:
. Reports filed under Sections 13(a) and (c) of the 1934 Act,
. Definitive proxy or information statements filed under Section 14 of the
1934 Act in connection with any subsequent stockholders' meeting, and
. Any reports filed under Section 15(d) of the 1934 Act.
You may request a copy of any filings referred to above, at no cost, by
writing or telephoning Case at the following address:
Case Corporation
Attention: Kevin J. Hallagan, Associate General
Counsel and Assistant Secretary
700 State Street
Racine, Wisconsin 53404
Telephone: (414) 636-6011
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CASE CORPORATION
Case Corporation is a leading worldwide designer, manufacturer, marketer and
distributor of farm equipment and light- to medium-sized construction equipment
and offers a broad array of financial products and services.
Case's industrial operations manufacture, market and distribute a full line
of farm equipment and light- to medium-sized construction equipment on a
worldwide basis. Case's market position is particularly significant in several
product categories, including the following:
. loader/backhoes;
. skid steer loaders;
. large, high-horsepower farm tractors; and
. self-propelled combines.
To facilitate the sale of its products, Case offers wholesale financing to its
dealers. Wholesale financing consists primarily of floorplan financing and
allows dealers to maintain a representative inventory of products.
Case's financial services business is provided through Case Capital
Corporation, including its wholly owned subsidiary Case Credit(R) Corporation
and their subsidiaries and joint ventures. Case Capital provides and
administers financing for the retail purchase or lease of new and used Case and
other agricultural and construction equipment. Case Capital offers various
types of retail financing to end-use customers to facilitate the sale or lease
of Case products in the United States, Canada, Australia, Europe and
Uzbekistan. In addition, Case Capital facilitates and finances the sale of
insurance products to retail customers. It also provides financing for Case
dealers and rental equipment yards, and provides other retail financing
programs in North America, including a private-label credit card to purchase
parts, service, rentals, implements and attachments from Case dealers. Case
Capital's retail financing alternatives are intended to be competitive with
financing available from third parties.
USE OF PROCEEDS
Case will not receive any proceeds from the exchange offer.
THE EXCHANGE OFFER
Purpose and Effect; Registration Rights
Case sold the old notes to Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Chase Securities Inc., Credit Suisse First Boston Incorporated,
NationsBanc Montgomery Securities LLC and Salomon Smith Barney Inc., as initial
purchasers, on December 7, 1998. The initial purchasers then resold the old
notes under an offering memorandum dated December 2, 1998 in reliance on Rule
144A, Regulation S and other available exemptions under the 1933 Act. On
December 2, 1998, Case entered into a registration rights agreement with the
initial purchasers. Under the registration rights agreement, Case agreed:
. to file with the SEC a registration statement relating to the exchange
offer under the 1933 Act no later than April 21, 1999;
. to use its reasonable efforts to cause the exchange offer registration
statement to be declared effective under the 1933 Act on or before June
6, 1998;
. to use its reasonable efforts to keep the exchange offer registration
statement effective until the closing of the exchange offer; and
. to use its reasonable efforts to cause the exchange offer to be
consummated not later than 45 days following the date of effectiveness of
the exchange offer registration statement.
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In the registration rights agreement, Case agreed to file a shelf
registration statement if:
. Case is not permitted to effect the exchange offer because of any change
in law, SEC rules or regulations or applicable interpretations of law,
SEC rules or regulations by the SEC staff;
. for any other reason, the exchange offer registration statement is not
declared effective by June 6, 1999 or the exchange offer is not
consummated within 45 days after the date of effectiveness of the
exchange offer registration statement, but Case may terminate such shelf
registration statement at any time, without penalty, if the exchange
offer registration statement is declared effective or the exchange offer
is consummated;
. any initial purchaser requests, within 90 days of the consummation of the
exchange offer, that Case file a shelf registration statement with
respect to any old notes held by it that are not eligible to be exchanged
in the exchange offer for new notes; or
. any holder is not permitted by applicable law to participate in the
exchange offer or does not receive freely transferrable new notes
pursuant to the exchange offer.
If Case is required to file a shelf registration statement, Case will file the
shelf registration statement relating to the old notes on or before the later
of:
. June 6, 1999; or
. the date that is 60 days after the date that the obligation to file the
shelf registration statement arises.
Case will use its reasonable efforts to cause the shelf registration statement
to be declared effective no later than 60 days after it is filed. If the shelf
registration statement is filed, Case will use its reasonable efforts to keep
the shelf registration statement continuously effective in order to permit the
prospectus forming a part of the shelf registration statement to be usable for
a period of two years (or one year if an initial purchaser requests Case to
file the shelf registration statement) from the date of its effectiveness or a
shorter period that will terminate when all the notes covered by the shelf
registration statement have been sold pursuant to the shelf registration
statement or otherwise cease to be outstanding.
A holder who sells old notes pursuant to the shelf registration statement
will be required to be named as a selling securityholder in the prospectus, and
to deliver a copy of the prospectus to purchasers. If Case is required to file
a shelf registration statement, Case will provide to each holder of the old
notes copies of the prospectus that is a part of the shelf registration
statement and notify each such holder when the shelf registration statement
becomes effective. Such holder will be subject to certain of the civil
liability provisions under the 1933 Act in connection with such sales, and will
be bound by the provisions of the registration rights agreement which are
applicable to such a holder (including certain indemnification obligations).
The registration rights agreement requires Case to pay the holders of the
notes additional interest if a registration default occurs. A registration
default includes if:
. the exchange offer registration statement is not filed with the SEC on or
before April 21, 1999;
. the effective date of the exchange offer registration statement does not
occur on or before June 6, 1999;
. the exchange offer is not consummated on or before the 45th calendar day
following the effective date of the exchange offer registration
statement; or
. a shelf registration statement is not filed on or before the deadline for
its filing or is not declared effective on or prior to the 60th calendar
day following the date of its filing.
If a registration default occurs, the interest rate of the old notes will be
increased by 0.25% per year for the first 90-day period following the
registration default. The interest rate will increase by an additional 0.25%
per year at the beginning of each later 90-day period until all registration
defaults have been remedied. The interest rate may not be increased as a result
of registration defaults by more than 0.50% per year. Following the cure of all
registration defaults, the accrual of additional interest will cease and the
interest rate will revert to the original rate.
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The exchange offer is intended to satisfy Case's exchange offer obligations
under the registration rights agreement. The above summary of the registration
rights agreement is not complete and is subject to, and qualified by reference
to, all the provisions of the registration rights agreement. A copy of the
registration rights agreement is filed as an exhibit to the registration
statement that includes this prospectus.
If you participate in the exchange offer, you will, with limited exceptions,
receive notes that are freely tradeable and not subject to restrictions on
transfer. You should read this prospectus under the heading "--Resales of New
Notes" for more information relating to your ability to transfer new notes.
The exchange offer is not being made to, nor will Case accept tenders for
exchange from, holders of old notes in any jurisdiction in which the exchange
offer or the acceptance of the exchange offer would not be in compliance with
the securities laws or blue sky laws of such jurisdiction.
Expiration Date; Extensions
The expiration date at the exchange offer is , 1999 at 5:00
p.m., New York City time. Case, in its sole discretion, may extend the exchange
offer. If Case extends the exchange offer, the expiration date will be the
latest date and time to which the exchange offer is extended. Case will notify
the exchange agent of any extension by oral or written notice and will make a
public announcement of the extension no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled expiration date.
Case expressly reserves the right, in its sole and absolute discretion:
. to delay accepting any old notes;
. to extend the exchange offer;
. if any of the conditions under "--Conditions of the Exchange Offer" have
not been satisfied, to terminate the exchange offer; and
. to waive any condition or otherwise amend the terms of the exchange offer
in any manner.
If the exchange offer is amended in a manner determined by Case to constitute a
material change, Case will promptly disclose such amendment by means of a
prospectus supplement that will be distributed to the registered holders of the
old notes. Any delay in acceptance, extension, termination or amendment will be
followed promptly by an oral or written notice of the event to the exchange
agent. Case will also make a public announcement of the event. If the
announcement relates to an extension, the announcement will be made no later
than 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration date. Without limiting the manner in which Case
may choose to make any public announcement and subject to applicable law, Case
has no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to a national news service.
Terms of the Exchange Offer
Case is offering, upon the terms and subject to the conditions set forth in
this prospectus and in the accompanying letter of transmittal, to exchange
$1,000 in principal amount of new notes for each $1,000 in principal amount of
outstanding old notes. Case will accept for exchange any and all old notes that
are validly tendered on or before 5:00 p.m., New York City time, on the
expiration date. Tenders of the old notes may be withdrawn at any time before
5:00 p.m., New York City time, on the expiration date. The exchange offer is
not conditioned upon any minimum principal amount of old notes being tendered
for exchange. However, the exchange offer is subject to the registration rights
agreement and the satisfaction of the conditions described under "--Conditions
of the Exchange Offer." Old notes may be tendered only in multiples of $1,000.
Holders may tender less than the aggregate principal amount represented by
their old notes if they appropriately indicate this fact on the letter of
transmittal accompanying the tendered old notes or indicate this fact pursuant
to the procedures for book-entry transfer described below.
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As of the date of this prospectus, $300 million in aggregate principal
amount of the old notes were outstanding. Solely for reasons of administration,
Case has fixed the close of business on , 1999, as the record date for
purposes of determining the persons to whom this prospectus and the letter of
transmittal will be mailed initially. Only a holder of the old notes (or such
holder's legal representative or attorney-in-fact) whose ownership is reflected
in the records of The Bank of New York, as registrar, or whose notes are held
of record by the depository, may participate in the exchange offer. There will
be no fixed record date for determining the eligible holders of the old notes
that are entitled to participate in the exchange offer. Case believes that, as
of the date of this prospectus, no holder is an "affiliate' (as defined in Rule
405 under the 1933 Act) of Case.
Case will be deemed to have accepted validly tendered old notes when, as and
if Case gives oral or written notice of its acceptance to the exchange agent.
The exchange agent will act as agent for the tendering holders of old notes and
for purposes of receiving the new notes from Case. If any tendered old notes
are not accepted for exchange because of an invalid tender or otherwise,
certificates for the unaccepted old notes will be returned, without expense, to
the tendering holder as promptly as practicable after the expiration date.
Holders of old notes do not have any appraisal or dissenters' rights under
applicable law or the Indenture as a result of the exchange offer. Case intends
to conduct the exchange offer in accordance with the applicable requirements of
the 1934 Act and the rules and regulations under the 1934 Act, including Rule
14e-1.
Holders who tender their initial notes in the exchange offer will not be
required to pay brokerage commissions or fees or, subject to the instructions
in the letter of transmittal, transfer taxes with respect to the exchange of
initial notes pursuant to the exchange offer. Case will pay all charges and
expenses, other than transfer taxes in certain circumstances, in connection
with the exchange offer. See "--Fees and Expenses."
Neither Case nor its board of directors make any recommendation to holders
of old notes as to whether to tender any of their old notes pursuant to the
exchange offer. In addition, no one has been authorized to make any such
recommendation. Holders of old notes must make their own decision whether to
participate in the exchange offer and, if the holder chooses to participate in
the exchange offer, the aggregate principal amount of old notes to tender,
after reading carefully this prospectus and the letter of transmittal and
consulting with their advisors, if any, based on their own financial position
and requirements.
Conditions of the Exchange Offer
You must tender your old notes in accordance with the requirements of this
prospectus and the letter of transmittal in order to participate in the
exchange offer.
Notwithstanding any other provision of the exchange offer, or any extension
of the exchange offer, Case will not be required to accept for exchange any old
notes, and may terminate or amend the exchange offer if:
. the exchange offer, or the making of any exchange by a holder, violates
any applicable law or interpretation of the SEC staff; or
. any action or proceeding has been instituted or threatened in any court
or by or before any governmental entity with respect to the exchange
offer which, in Case's judgment, would reasonably be expected to impair
Case's ability to proceed with the exchange offer.
If Case determines in its sole discretion that any of the above events or
conditions has occurred, Case may, subject to applicable law, terminate the
exchange offer and return all old notes tendered for exchange or may waive any
condition or amend the terms of the exchange offer.
Case expects that the above conditions will be satisfied. The above
conditions are for Case's sole benefit and may be waived by Case at any time in
Case's sole discretion. Case's failure at any time to exercise any of the above
rights will not be a waiver of those rights and each right will be deemed an
ongoing right that may be asserted at any time. Any determination by Case
concerning the events described above will be final and binding upon all
parties.
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Interest
Each new note will bear interest from the most recent date to which interest
has been paid or duly provided for on the old note surrendered in exchange for
such new note or, if no such interest has been paid or duly provided for on
such old note, from December 7, 1998. Holders of the old notes whose old notes
are accepted for exchange will not receive accrued interest on such old notes
for any period from and after the last interest payment date to which interest
has been paid or duly provided for on such old notes prior to the original
issue date of the new notes or, if no such interest has been paid or duly
provided for, will not receive any accrued interest on such old notes, and will
be deemed to have waived the right to receive any interest on such old notes
accrued from and after such interest payment date or, if no such interest has
been paid or duly provided for, from and after December 7, 1998. Interest on
the new notes will be payable semi-annually on June 1 and December 1 of each
year.
Procedures for Tendering Old Notes
The tender of a holder's old notes and Case's acceptance of old notes will
constitute a binding agreement between the tendering holder and Case upon the
terms and conditions of this prospectus and the letter of transmittal. Unless a
holder tenders old notes according to the guaranteed delivery procedures or the
book-entry procedures described below, the holder must transmit the old notes,
together with a properly completed and executed letter of transmittal and all
other documents required by the letter of transmittal, to the exchange agent at
its address before 5:00 p.m., New York City time on the expiration date. The
method of delivery of old notes, letters of transmittal and all other required
documents is at the election and risk of the tendering holder. If delivery is
by mail, it is recommended that registered mail, properly insured, with return
receipt requested, be used. Instead of delivery by mail, it is recommended that
each holder use an overnight or hand delivery service. In all cases, sufficient
time should be allowed to assure timely delivery.
Any beneficial owner of the old notes whose old notes are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
who wishes to tender old notes in the exchange offer should contact that
registered holder promptly and instruct that registered holder to tender on its
behalf. If the beneficial owner wishes to tender directly, it must, prior to
completing and executing the letter of transmittal and tendering old notes,
make appropriate arrangements to register ownership of the old notes in its
name. Beneficial owners should be aware that the transfer of registered
ownership may take considerable time.
Any financial institution that is a participant in DTC's Book-Entry Transfer
Facility system may make book-entry delivery of the old notes by causing DTC to
transfer the old notes into the exchange agent's account in accordance with
DTC's procedures for such transfer. To be timely, book-entry delivery of old
notes requires receipt of a confirmation of a book-entry transfer before the
expiration date. Although delivery of the old notes may be effected through
book-entry transfer into the exchange agent's account at DTC, the letter of
transmittal (or facsimile), properly completed and executed, with any required
signature guarantees and any other required documents or an agent's message (as
described below), must in any case, be delivered to and received by the
exchange agent at its address on or before the expiration date, or the
guaranteed delivery procedure set forth below must be complied with.
DTC has confirmed that the exchange offer is eligible for DTC's Automated
Tender Offer Program. Accordingly, participants in DTC's Automated Tender Offer
Program may, instead of physically completing and signing the applicable letter
of transmittal and delivering it to the exchange agent, electronically transmit
their acceptance of the exchange offer by causing DTC to transfer old notes to
the exchange agent in accordance with DTC's Automated Tender Offer Program
procedures for transfer. DTC will then send an agent's message to the exchange
agent.
The term "agent's message" means a message transmitted by DTC, received by
the exchange agent and forming part of the book-entry confirmation, which
states that DTC has received an express acknowledgment from a participant in
DTC's Automated Tender Offer Program that is tendering old notes that are the
subject of such book-entry confirmation, that the participant has received and
agrees to be bound by the terms of the
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applicable letter of transmittal or, in the case of an agent's message relating
to guaranteed delivery, that the participant has received and agrees to be
bound by the applicable notice of guaranteed delivery, and that Case may
enforce such agreement against that participant.
Each signature on a letter of transmittal or a notice of withdrawal must be
guaranteed unless the old notes are tendered:
. by a registered holder who has not completed the box entitled "Special
Delivery Instructions"; or
. for the account of an eligible institution (as described below).
If a signature on a letter of transmittal or a notice of withdrawal is required
to be guaranteed, the signature must be guaranteed by a participant in a
recognized Medallion Signature Program (a "Medallion Signature Guarantor"). If
the letter of transmittal is signed by a person other than the registered
holder of the old notes, the old notes surrendered for exchange must be
endorsed by the registered holder, with the signature guaranteed by a Medallion
Signature Guarantor. If any letter of transmittal, endorsement, bond power,
power of attorney or any other document required by the letter of transmittal
is signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, such person should sign in that capacity when signing.
Such person must submit evidence satisfactory to Case, in Case's sole
discretion, of his authority to so act unless Case waives such requirement.
As used in this prospectus with respect to the old notes, a "registered
holder" is any person in whose name the old notes are registered on the books
of the registrar. An "eligible institution" is a firm that is a member of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., a commercial bank or trust company having an office
or correspondent in the United States or any other "eligible guarantor
institution" as such term is defined in Rule 17Ad-15 under the 1934 Act.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of old notes tendered for exchange will be
determined by Case in its sole discretion. Case's determination will be final
and binding. Case reserves the absolute right to reject old notes not properly
tendered and to reject any old notes if acceptance might, in the judgment of
Case or its counsel, be unlawful. Case also reserves the absolute right to
waive any defects or irregularities or conditions of the exchange offer as to
particular old notes at any time, including the right to waive the
ineligibility of any holder who seeks to tender old notes in the exchange
offer. The interpretation by Case of the terms and conditions of the exchange
offer, including the letter of transmittal and its instructions, will be final
and binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of old notes for exchange must be cured within such
period of time as Case determines. Neither Case nor the exchange agent is under
any duty to give notification of defects in such tenders or will incur any
liability for failure to give such notification. The exchange agent will use
reasonable efforts to give notification of defects or irregularities with
respect to tenders of old notes for exchange but will not incur any liability
for failure to give such notification. Tenders of old notes will not be deemed
to have been made until such irregularities have been cured or waived.
By tendering, you will represent to Case that, among other things:
. the new notes to be received in the exchange offer are being acquired in
the ordinary course of your business;
. you do not intend to participate, and have no arrangement or
understanding with any person to participate, in the distribution (within
the meaning of the 1933 Act) of the new notes;
. you are not a broker-dealer that acquired your notes directly from Case
in order to resell them pursuant to Rule 144A under the 1933 Act or any
other available exemption under the 1933 Act;
. if you are a broker-dealer that acquired old notes as a result of market-
making or other trading activities, you will deliver a prospectus in
connection with any resale of new notes acquired in the exchange offer;
. you are not Case's "affiliate" (as defined in Rule 405 under the 1933
Act).
In connection with a book-entry transfer, each participant will confirm that it
makes the representations and warranties contained in the letter of
transmittal.
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Guaranteed Delivery Procedures
Holders who wish to tender their old notes and:
. whose old notes are not immediately available, or
. who cannot deliver their old notes or any other documents required by the
letter of transmittal to the exchange agent on or before the expiration
date (or complete the procedure for book-entry transfer on a timely
basis),
may tender their old notes according to the guaranteed delivery procedures
described in the letter of transmittal.
Those procedures require that:
. tender be made by or through an eligible institution and a notice of
guaranteed delivery must be signed by such holder;
. on or before the expiration date, the exchange agent receive from the
holder and the eligible institution a properly completed and executed
notice of guaranteed delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the holder, the
certificate number or numbers of the tendered old notes, and the
principal amount of tendered old notes, which states that the tender is
being made pursuant to the guaranteed delivery procedures and
guaranteeing that, within four business days after the date of delivery
of the notice of guaranteed delivery, the tendered old notes in proper
form for transfer or confirmation of a book-entry transfer of those old
notes into the exchange agent's account at DTC, a duly executed letter of
transmittal and any other required documents will be deposited by the
eligible institution with the exchange agent; and
. properly completed and executed documents required by the letter of
transmittal and the tendered old notes in proper form for transfer or
confirmation of a book-entry transfer of such old notes into the exchange
agent's account at DTC be received by the exchange agent within four
business days after the expiration date.
Any holder who wishes to tender old notes pursuant to the guaranteed delivery
procedures must ensure that the exchange agent receives the notice of
guaranteed delivery and letter of transmittal relating to such old notes before
5:00 p.m., New York City time, on the expiration date.
Acceptance of Old Notes for Exchange; Delivery of New Notes
Upon satisfaction or waiver of all the conditions to the exchange offer,
Case will accept old notes that are properly tendered in the exchange offer
prior to 5:00 p.m., New York City time, on the expiration date. The new notes
will be delivered promptly after acceptance of the old notes. For purposes of
the exchange offer, Case will be deemed to have accepted validly tendered old
notes, when, as and if Case has given notice to the exchange agent.
Withdrawal Rights
Tenders of the old notes may be withdrawn by delivery of a written or
facsimile transmission notice to the exchange agent, at its address set forth
under "--The Exchange Agent; Assistance" at any time before 5:00 p.m., New York
City time, on the expiration date. Any such notice of withdrawal must:
. specify the name of the person having deposited the old notes to be
withdrawn;
. identify the old notes to be withdrawn (including the certificate number
or numbers and principal amount of such old notes), or, in the case of
old notes transferred by book-entry transfer, the name and number of the
account at DTC to be credited;
. be signed by the holder in the same manner as the original signature on
the letter of transmittal by which old notes were tendered, including any
required signature guarantees, or be accompanied by a bond power in the
name of the person withdrawing the tender, in satisfactory form as
determined by Case in its sole discretion, executed by the registered
holder, with the signature guaranteed by a Medallion Signature Guarantor,
together with the other documents required upon transfer by the
Indenture; and
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. specify the name in which the old notes are to be re-registered, if
different from the person who deposited the old notes.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by Case, in its sole discretion.
The old notes withdrawn will be deemed not to have been validly tendered for
exchange for purposes of the exchange offer. Any old notes that have been
tendered for exchange but are withdrawn will be returned to the holder without
cost as soon as practicable after withdrawal. Properly withdrawn old notes may
be retendered pursuant to the procedures described under "--Procedures for
Tendering Old Notes" at any time on or before the expiration date.
The Exchange Agent; Assistance
The Bank of New York, a New York banking corporation, is the exchange agent.
All tendered old notes, executed letters of transmittal and other related
documents should be directed to the exchange agent. Questions and requests for
assistance and requests for additional copies of the prospectus, the letter of
transmittal and other related documents should be addressed to the exchange
agent as follows:
By Registered or Certified Mail:
The Bank of New York
101 Barclay Street, Floor 7-E
New York, NY 10286
Attention: Reorganization Section
By Hand or Overnight Courier:
The Bank of New York
101 Barclay Street
Corporate Trust Services Window
Ground Level
New York, NY 10286
Attention: Reorganization Section
By Facsimile: (212) 815-
6339
Attention: _______________________________________________
Confirm by Telephone (eligible institutions only):________
Fees and Expenses
Case will bear the expenses of soliciting old notes for exchange. The
principal solicitation is being made by mail by the exchange agent. Additional
solicitation may be made by telephone, facsimile or in person by officers and
regular employees of Case and its affiliates and by persons so engaged by the
exchange agent.
Case will pay the exchange agent reasonable and customary fees for its
services and will reimburse it for its reasonable out-of-pocket expenses in
connection with its services and pay other registration expenses, including
fees and expenses of the trustee under the Indenture, filing fees, blue sky
fees and printing and distribution expenses.
Case has not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or others soliciting
acceptance of the exchange offer.
Case will pay all transfer taxes, if any, applicable to the exchange of old
notes pursuant to the exchange offer. If, however, a transfer tax is imposed
for any reason other than the exchange of old notes pursuant to the exchange
offer, then the amount of those transfer taxes, whether imposed on the
registered holder or any other persons, will be payable by the tendering
holder. If satisfactory evidence of payment of those taxes or exemption is not
submitted with the letter of transmittal, the amount of those transfer taxes
will be billed directly to such tendering holder.
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Accounting Treatment
The new notes will be recorded at the same carrying value as the old notes,
as reflected in Case's accounting records on the date of the exchange.
Accordingly, Case will recognize no gain or loss for accounting purposes. The
expenses of the exchange offer will be amortized over the term of the new
notes.
Consequences of Not Exchanging Old Notes
As a result of this exchange offer, Case will have fulfilled most of its
obligations under the registration rights agreement, and holders who do not
tender their old notes, except for certain instances involving the initial
purchasers or holders of old notes who are not eligible to participate in the
exchange offer or who do not receive freely transferrable new notes pursuant to
the exchange offer, will not have any further registration rights under the
registration rights agreement or otherwise and will not have rights to receive
additional interest. Accordingly, any holder that does not exchange its old
notes for new notes will continue to hold the untendered old notes and will be
entitled to all the rights and subject to all the limitations applicable under
the indenture, except to the extent that such rights or limitations, by their
terms, terminate or cease to have further effectiveness as a result of the
exchange offer.
The old notes that are not exchanged for new notes pursuant to the exchange
offer will remain restricted securities within the meaning of the 1933 Act. In
general, such old notes may be resold only:
. to Case or any of its subsidiaries;
. inside the United States to a "qualified institutional buyer" in
compliance with Rule 144A under the 1933 Act;
. inside the United States to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3), or (7) under the 1933 Act), or an
"accredited investor" that, prior to such transfer, furnishes or has
furnished on its behalf by a U.S. broker-dealer to the trustee under the
indenture a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the new notes, the
form of which letter can be obtained from the trustee;
. outside the United States in compliance with Rule 904 under the 1933 Act;
. pursuant to the exemption from registration provided by Rule 144 under
the 1933 Act, if available; or
. pursuant to an effective registration statement under the 1933 Act.
Each accredited investor that is not a qualified institutional buyer and
that is an original purchaser of any of the old notes from the initial
purchasers will be required to sign a letter confirming that it is an
accredited investor under the 1933 Act and that it acknowledges the transfer
restrictions summarized above.
Resales of the New Notes
Case is making the exchange offer in reliance on the position of the staff
of the SEC as set forth in interpretive letters addressed to third parties in
other transactions. However, Case has not sought its own interpretive letter.
Although there has been no indication of any change in the staff's position,
there can be no assurance that the staff of the SEC would make a similar
determination with respect to the exchange offer as it has in the interpretive
letters to third parties. Based on these interpretations by the staff, and
except as provided below, Case believes that new notes may be offered for
resale, resold and otherwise transferred by a holder that participates in the
exchange offer and is not a broker-dealer without further compliance with the
registration and prospectus delivery provisions of the 1933 Act. In order to
receive new notes that are freely tradeable, a holder must acquire the new
notes in the ordinary course of its business and may not participate, or have
any arrangement or understanding with any person to participate, in the
distribution (within the meaning of the 1933 Act) of the new notes. Holders
wishing to participate in the exchange offer must make the representations
described in "--Procedures for Tendering Old Notes" above.
Any holder of old notes:
. who is Case's "affiliate" (as defined in Rule 405 under the 1933 Act);
. who did not acquire the new notes in the ordinary course of its business;
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. who intends to participate in the exchange offer for the purpose of
distributing (within the meaning of the 1933 Act) new notes; or
. who is a broker-dealer who purchased old notes from Case to resell them
pursuant to Rule 144A under the 1933 Act or any other available exemption
under the 1933 Act,
will be subject to separate restrictions. Each holder in any of the above
categories:
. will not be able to rely on the interpretations of the staff of the SEC
in the above-mentioned interpretive letters;
. will not be permitted or entitled to tender old notes in the exchange
offer; and
. must comply with the registration and prospectus delivery requirements of
the 1933 Act in connection with any sale or other transfer of old notes
unless such sale is made pursuant to an exemption from such requirements.
In addition, if you are a broker-dealer holding old notes acquired for your
own account, then you may be deemed a statutory "underwriter" within the
meaning of the 1933 Act and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resales of your new notes. Each broker-
dealer that receives new notes for its own account pursuant to the exchange
offer must acknowledge that it acquired the old notes for its own account as a
result of market-making activities or other trading activities and must agree
that it will deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of those new notes. The letter of transmittal states
that by making the above acknowledgment and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act. Based on the position taken by the SEC staff in
the interpretive letters referred to above, Case believes that broker-dealers
who acquired old notes for their own accounts, as a result of market-making or
other trading activities ("Participating Broker-Dealers") may fulfill their
prospectus delivery requirements with respect to the new notes received upon
exchange of old notes (other than old notes which represent an unsold allotment
from the original sale of the old notes) with a prospectus meeting the
requirements of the 1933 Act, which may be the prospectus prepared for an
exchange offer so long as it contains a description of the plan of distribution
with respect to the resale of such new notes. Accordingly, this prospectus, as
it may be amended or supplemented, may be used by a Participating Broker-Dealer
during the period referred to below in connection with resales of new notes
received in exchange for old notes where such old notes were acquired by such
Participating Broker-Dealer for its own account as a result of market-making or
other trading activities. Subject to certain provisions set forth in the
registration rights agreement, Case has agreed that this prospectus may be used
by a Participating Broker-Dealer in connection with resales of such new notes.
See "Plan of Distribution." However, a Participating Broker-Dealer who intends
to use this prospectus in connection with the resale of new notes received in
exchange for old notes pursuant to the exchange offer must notify Case, or
cause Case to be notified, on or before the expiration date of the exchange
offer, that it is a Participating Broker-Dealer. Such notice may be given in
the space provided for that purpose in the letter of transmittal or may be
delivered to the exchange agent at the address set forth under "--The Exchange
Agent; Assistance." Any Participating Broker-Dealer who is an "affiliate" of
Case may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the 1933 Act in connection
with any resale transaction.
Each Participating Broker-Dealer who tenders old notes pursuant to the
exchange offer will be deemed to have agreed, by execution of the letter of
transmittal, that, upon receipt of notice from Case of the occurrence of any
event or the discovery of any fact which makes any statement contained in this
prospectus untrue in any material respect or which causes this prospectus to
omit to state a material fact necessary in order to make the statements
contained herein, in light of the circumstances under which they were made, not
misleading or of the occurrence of certain other events specified in the
registration rights agreement, such Participating Broker-Dealer will suspend
the sale of new notes pursuant to this prospectus until Case has amended or
supplemented this prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented prospectus to such
Participating Broker-Dealer or Case has given notice that the sale of the new
notes may be resumed, as the case may be.
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Miscellaneous
Participation in the exchange offer is voluntary and holders should
carefully consider whether to accept. Holders of the old notes are urged to
consult their financial and tax advisors in making their own decisions on what
action to take.
DESCRIPTION OF NOTES
The old notes were, and the new notes will be, issued as a single series of
securities under the Indenture, dated as of July 31, 1995, between Case and The
Bank of New York, as trustee. The form and term of the new notes are
substantially identical to the form and term of the old notes, except that the
new notes:
. will be registered under the 1933 Act;
. will not, except under limited circumstances, have registration rights or
rights to additional interest; and
. will not bear any legends restricting transfer.
The new notes will be issued solely in exchange for an equal principal amount
of old notes. As of the date of this prospectus, $300 million aggregate
principal amount of old notes is outstanding. See "The Exchange Offer."
The following summaries of certain provisions of the Indenture are not
complete; they are subject to all the provisions of the Indenture, including
definitions of terms used in the Indenture. Wherever Case refers to particular
sections or defined terms used in the Indenture, such sections or defined terms
are automatically incorporated into this prospectus. Case has filed a copy of
the Indenture with the SEC and the Indenture is incorporated by reference into
the registration statement. In addition to the old notes, which were issued on
December 7, 1998, Case has issued $300,000,000 aggregate principal amount of
its 7 1/4% Notes due August 1, 2005 and $300,000,000 aggregate principal amount
of its 7 1/4% Notes due January 15, 2016 under the Indenture.
General
The Indenture does not limit the amount of securities that may be issued
under it. Securities may be issued from time to time in one or more series. The
new notes will be unsecured and unsubordinated obligations of Case and will
rank equally and ratably with other unsecured and unsubordinated obligations of
Case. The new notes are effectively subordinate to all of Case's secured debt
and all indebtedness of subsidiaries of Case with respect to the assets of such
subsidiaries (aggregating approximately $3,319 million at March 31, 1999).
The new notes will mature on December 1, 2003. The new notes will be limited
to $300,000,000 aggregate principal amount. Interest on the new notes will be
computed on the basis of a 360-day year of twelve 30-day months and will be
payable on each June 1 and December 1. Each new note will bear interest from
the most recent date to which interest has been paid or duly provided for on
the old note surrendered in exchange for such new note or, if no such interest
has been paid or duly provided for on such old note, from December 7, 1998.
Holders of the old notes whose old notes are accepted for exchange will not
receive accrued interest on such old notes for any period from and after the
last interest payment date to which interest has been paid or duly provided for
on such old notes prior to the original issue date of the new notes or, if no
such interest has been paid or duly provided for, will not receive any accrued
interest on such old notes, and will be deemed to have waived the right to
receive any interest on such old notes accrued from and after such interest
payment date or, if no such interest has been paid or duly provided for, from
and after December 7, 1998. Interest payable on the new notes on each interest
payment date will include interest accrued from the previous interest payment
date or, if no such interest has been paid or duly provided for, from December
7, 1998. Case will pay interest to the person in whose name a note (or any
predecessor note) is registered at the close of business on the May 15 or
November 15, as the case may be, before such interest payment date.
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Payments of principal and interest to owners of interests in the global
notes are expected to be made in accordance with the depository's and its
participants' procedures. See "--Book-Entry Notes." Principal of, any premium,
and interest on notes in definitive form will be payable at the office or
agency of Case maintained for such purpose in New York, New York. Initially,
payments will be made at the office of an affiliate of the paying agent. The
trustee will initially be the securities registrar and paying agent. The
payment of interest on notes in definitive form may be made at the option of
Case by check mailed to the person entitled to payment as shown on the
security register. The notes will be exchangeable and transferable at the
office or agency of Case in New York, New York, which initially will be at the
office of an affiliate of the paying agent. Except as otherwise described in
"--Book-Entry Notes," the new notes will be issued only in fully registered
form without coupons and in denominations of $1,000 or integral multiples of
$1,000. Case will not impose a service charge for any registration of transfer
or exchange of notes, but Case may require payment of a sum sufficient to
cover any tax or other governmental charge imposed in connection with a
registration or transfer or exchange.
Case will pay principal, any premium, and interest on the notes in
immediately available funds. The new notes will trade in the Same-Day Funds
Settlement System of The Depository Trust Company. Thus, purchasers of new
notes in the secondary market must pay for the notes in immediately available
funds.
The new notes are not redeemable prior to maturity. The new notes do not
provide for any sinking fund.
The provisions of Sections 13.2 and 13.3 of the Indenture relating to
defeasance and covenant defeasance are applicable to the notes. See "--
Defeasance and Covenant Defeasance."
The Indenture does not contain covenants or other provisions designed to
afford holders of the notes protection in the event of a highly leveraged
transaction, change in credit rating or other similar occurrence.
Book-Entry Notes
The old notes offered and sold to qualified institutional buyers (as
defined under Rule 144A of the 1933 Act) or "QIBs" were each registered in
book-entry form and are represented by two global notes in fully registered
form without interest coupons. These global notes were deposited with the
trustee as custodian for The Depository Trust Company or "DTC" and registered
in the name of Cede & Co.
The old notes offered and sold to persons outside the United States who
received such old notes pursuant to sales in accordance with Regulation S
under the 1933 Act were initially represented by a global note certificate in
fully registered form without interest coupons. This certificate was deposited
with the trustee as custodian for DTC and registered in the name of Cede & Co.
Before the expiration of the "40-day restricted period" (within the meaning of
Rule 903 of Regulation S), transfers of interest in this certificate were only
effected through records maintained by DTC, Cedel Bank, societe anonyme
("CEDEL") or the Euroclear System ("Euroclear").
Except as described below, the new notes will be represented by one or more
global notes. Case will deposit the global notes representing the new notes
with DTC. The global notes will be registered in the name of DTC or its
nominee. Except as provided below, the new notes will not be issued in
definitive form. One certificate will be issued in the principal amount of
$200 million of principal amount and one certificate will be issued in the
principal amount of $100 million.
Holders of new notes who elect to take physical delivery of their
certificates instead of holding their interest through the global notes will
be issued a certificated new note in registered form. Upon the transfer of any
certificated new note initially issued to such holders, such certificated new
note will, unless the transferree requests otherwise or the global notes have
previously been exchanged in whole for certificated new notes, be exchanged
for an interest in the global notes representing the new notes.
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The Depository Trust Company is a limited-purpose trust company organized
under the New York Banking Law. It is a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of Section
17A of the 1934 Act. DTC holds securities that its participants (including
CEDEL and Euroclear) deposit with it. DTC also facilitates the settlement among
participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic book-entry changes in participants'
accounts, which eliminates the need for physical movement of certificates.
Direct participants include securities brokers and dealers, banks, trust
companies, clearing corporations and other organizations. DTC is owned by a
number of its direct participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to DTC's book entry system is also available to others,
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a direct participant, either
directly or indirectly. These other entities are referred to as "indirect
participants." The rules applicable to DTC and its participants are on file
through the SEC.
Purchases of new notes represented by a global note under DTC's system must
be made by or through direct participants. Direct participants will receive a
credit for the new notes on DTC's records. The ownership interest of each
actual purchaser of each note will be recorded on the direct and indirect
participants' records. Each actual purchaser is referred to as a "beneficial
owner." Beneficial owners will not receive written confirmation from DTC of
their purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction and periodic statements of
their holdings, from the direct or indirect participant through which the
beneficial owner entered into the transaction. Transfers of ownership interests
in the new notes will be accomplished by entries made on the books of
participants acting on behalf of beneficial owners. Beneficial owners will not
receive certificates representing their ownership interests in the new notes,
except if use of the book-entry system for the new notes is discontinued. All
beneficial ownership interests in the global notes, including those held
through Euroclear or CEDEL, will be subject to the procedures and requirements
of DTC and where applicable, Euroclear or CEDEL. The laws of some states
require that certain purchasers of notes take physical delivery of securities
in definitive form. These limits and laws may impair the ability to transfer
beneficial interests in the global notes.
So long as the depository for the global notes, or its nominee, is the
registered owner of the global notes, it will be considered the sole owner or
holder of the notes represented by the global notes. Except as provided below,
owners of beneficial interests in the new notes represented by the global notes
will not be entitled to have their new notes represented by such global notes
registered in their names, will not receive or be entitled to receive physical
delivery of the new notes in definitive form and will not be considered the
owners or holders of the notes under the Indenture.
To facilitate subsequent transfers, all notes deposited by participants with
DTC are registered in the name of DTC's partnership nominee, Cede & Co. The
deposit of the new notes with DTC and their registration in the name of Cede &
Co. cause no change in beneficial ownership. DTC has no knowledge of the actual
beneficial owners of the new notes; its records reflect only the identity of
the direct participants to whose accounts the notes are credited, which may or
may not be the beneficial owners. The participants will remain responsible for
keeping account of their holdings on behalf of their customers. Conveyance of
notices and other communications by DTC to direct participants, by direct
participants to indirect participants and by direct participants and indirect
participants to beneficial owners will be governed by arrangements among them.
Those arrangements are subject to any applicable statutory or regulatory
requirements.
Neither DTC nor Cede & Co. will consent or vote with respect to the new
notes. Under its usual procedures, DTC mails an omnibus proxy to Case as soon
as possible after the record date. The omnibus proxy assigns Cede & Co.'s
consenting or voting rights to direct participants whose accounts the new notes
are credited on the record date. Those direct participants are identified in a
listing attached to the omnibus proxy.
Case will make payments of principal, any premium and interest on the global
notes through the trustee or a paying agent to the depository, as the
registered owner of the global notes. Neither Case, the trustee, nor the
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paying agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the global notes, or for maintaining, supervising or reviewing any
records relating to beneficial ownership interests.
DTC has advised Case that, upon its receipt of any payment in respect of a
global note, it will credit direct participants' accounts on the payable date
in accordance with their respective holdings shown on its records unless it has
reason to believe that it will not receive payment on the payable date.
Payments by participants to beneficial owners will be governed by standing
instructions and customary practices, as is the case with notes held for the
accounts of customers in bearer form or registered in "street name." These
payments will be the responsibility of the participant and not of DTC, the
paying agent or Case, subject to any applicable statutory or regulatory
requirements. It is Case's responsibility or the paying agent's responsibility
to make payments to DTC. It is the responsibility of DTC to disburse the
payments to direct participants. It is the responsibility of direct and
indirect participants to disburse the payments to beneficial owners.
Transfer between participants in DTC will be effected in the ordinary way in
accordance with DTC rules. If a holder requires physical delivery of
certificated notes for any reason, including to sell notes to persons in states
which require physical delivery of such notes or to pledge such notes, such
holder must transfer its interest in the global note, in accordance with the
normal procedures of DTC and the procedures set forth in the Indenture.
Transfers between participants in Euroclear and CEDEL will be effected in the
ordinary way in accordance with their respective rules and operating
procedures.
Cross-market transfers between DTC, on the one hand, and directly or
indirectly through Euroclear or CEDEL participants, on the other, will be
effected by DTC in accordance with DTC rules on behalf of Euroclear or CEDEL,
as the case may be, by its respective depository. However, such cross-market
transactions will require delivery of instructions to Euroclear or CEDEL, as
the case may be, by the counterparty in such system in accordance with its
rules and procedures and within its established deadlines (Brussels time).
Euroclear or CEDEL, as the case may be, will, if the transaction meets its
settlement requirements, deliver instructions to its respective depository to
take action to effect final settlement on its behalf by delivering or receiving
interests in the global note in DTC, and making or receiving payment in
accordance with normal procedures for same-day funds settlements applicable to
DTC. CEDEL participants and Euroclear participants may not deliver instructions
directly to the depositories for CEDEL or Euroclear.
Because of time zone differences, the securities account of a Euroclear or
CEDEL participant purchasing an interest in a global note from a DTC
participant will be credited during the securities settlement processing day
(which must be a business day for Euroclear and CEDEL) immediately following
the DTC settlement date. The credit of any transactions in interest in a global
note settled during such processing day will be reported to the relevant
Euroclear or CEDEL participant on such day. Cash received in Euroclear or CEDEL
as a result of sales of interests in a global note by or through a Euroclear or
CEDEL participant to a DTC participant will be received for value on the DTC
settlement date but will be available in the relevant Euroclear or CEDEL cash
account only as of the business day following settlement in DTC.
Subject to certain conditions, any person having a beneficial interest in a
global note may, upon request to the trustee, exchange its beneficial interest
for certificated notes. Upon any such issuance of certificated notes, the
trustee is required to register such certificated notes in the name of, and
cause the same to be delivered to, the person or persons who requested
certificated notes or its nominee. In addition, if DTC is at any time unwilling
or unable to continue as a depositary for the global notes and a successor
depositary is not appointed by Case within 90 days, Case will issue
certificated notes in exchange for the global notes. If there is an event of
default under the Indenture, DTC will exchange the global notes for
certificated notes, which it will distribute to its participants.
DTC informs Case that its management is aware that some computer
applications, systems, and the like for processing data may encounter "Year
2000 problems." DTC informs Case that it has informed its participants and
other members of the financial community that it has developed and is
implementing a
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program so that its systems, as they relate to the timely payments of
distributions, including principal and income payments, to securityholders,
book-entry deliveries, and settlement of trades, continue to function
appropriately. According to DTC, this program includes a complete technical
assessment and a complete remediation plan. Additionally, DTC informs Case that
its plan includes a testing phase, which is expected to be completed within
appropriate time frames.
However, DTC informs Case that its ability to perform properly its services
is also dependent upon other parties, including issuers and their agents, and
third party vendors that license software and hardware and provide information
or services, including telecommunications and electrical utility services. DTC
has informed Case that it is contacting, and will continue to contact, third
party vendors that provide services to impress upon them the importance of
those services being Year 2000 compliant and determine the extent of their
efforts for Year 2000 remediation and testing of their services. In addition,
DTC informs Case that it is in the process of developing contingency plans it
deems appropriate.
According to DTC, the above information has been provided to its
participants and other members of the financial community for informational
purposes only and is not intended to serve as a representation, warranty or
contract modification of any kind.
The information in this section concerning DTC and its book-entry system has
been obtained from sources that Case believes to be reliable. However, Case
takes no responsibility for the accuracy of that information.
Certain Covenants of Case
Limitations on Secured Funded Debt. Some of Case's property may be subject
to a mortgage or other legal mechanism that gives Case's lenders preferential
rights in that property over other lenders (including the investors in the
notes) or over Case's general creditors if Case fails to pay them back. These
preferential rights are called "liens." Case and its Restricted Subsidiaries
may not place a lien on any Principal Property to secure Funded Debt unless you
and all other holders of the debt securities issued under the Indenture are
granted an equal or higher ranking lien on the same property. "Funded Debt" is
indebtedness of Case or a Restricted Subsidiary that matures more than 12
months from the time of computation. Funded Debt includes any guarantees of
such indebtedness that are not ordinary course guarantees made to sell
receivables, trade acceptances or other paper. Funded Debt also includes
capital lease obligations (as defined in the Indenture) and, in the case of
Restricted Subsidiaries, preferred stock of the Restricted Subsidiary.
However, Case and its Restricted Subsidiaries will not be obligated to grant
you a lien as described above if:
. all Funded Debt secured by a lien on any Principal Property, including
the newly created Funded Debt secured by a lien on any Principal
Property, plus
. all Attributable Debt relating to sale and leaseback transactions
concerning a Principal Property, other than Attributable Debt that may be
disregarded as described in "--Restrictions on Sales and Leasebacks"
below,
would not exceed 15% of Consolidated Net Tangible Assets.
This restriction on liens does not apply to the types of liens described
below, and Case and its Restricted Subsidiaries may disregard, when calculating
the amount of Funded Debt that is secured by a lien, any Funded Debt secured by
the following types of liens:
(1) liens on property of any corporation existing at the time the
corporation becomes a subsidiary of Case;
(2) liens on property existing at the time of acquisition of the
property or incurred within 180 days of acquisition by Case or any
Restricted Subsidiary;
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(3) liens on property that Case or a Restricted Subsidiary acquired
after July 31, 1995, if the lien was created before or within 270 days
after the acquisition to secure any part of the purchase price of the
property;
(4) liens on property that Case or a Restricted Subsidiary constructed
after July 31, 1995, if the lien was created before or within 270 days
after the later of:
. the completion of construction, or
. the beginning of commercial operation of the property
to secure any part of the construction price of the property;
(5) liens in favor of Case or any Restricted Subsidiary;
(6) liens in favor of a United States federal or state governmental
authority to secure payments under any contract or provisions of any
statute;
(7) liens incurred or assumed in connection with issuing revenue bonds
that bear interest exempt from federal income taxation under Section 103(b)
of the Internal Revenue Code;
(8) liens securing performance of any contract or undertaking not in
connection with borrowing of money, obtaining advances or credit or
securing Funded Debt, if made and continuing in the ordinary course of
business;
(9) liens incurred in connection with Case's or a Restricted
Subsidiary's engaging in leveraged or single-investor lease transactions,
as long as the borrowings secured by the liens are payable solely out of
the income and proceeds of the property subject to the lien and are not a
general obligation of Case or the Restricted Subsidiary;
(10) Any of the following types of liens involving Case or a
Restricted Subsidiary:
. liens arising under worker's compensation, unemployment compensation
or similar laws;
. good faith deposits in connection with bids, tenders or contracts or
to secure a public or statutory obligation;
. cash deposits to secure surety or appeal bonds and similar pledges or
deposits made in the ordinary course of business;
. mechanics' liens, vendors' liens and other similar liens imposed by
law;
. liens arising out of a judgment against Case or as a Restricted
Subsidiary that:
. Case or its Restricted Subsidiary is appealing; and
. a stay of execution of the judgment is in effect pending the appeal;
. liens for taxes that are being contested in good faith or that are
not subject to penalties for nonpayment; or
. minor title exceptions or encumbrances on real property that, in the
opinion of Case, do not materially detract from the value of the
properties or impair their use;
(11) liens incurred to finance construction, alteration or repair of
any Principal Property and improvements to any Principal Property before or
within 270 days after completion of construction, alteration or repair; or
(12) any extension, renewal, refunding or replacement of the liens
described above.
Restrictions on Sale and Leasebacks. Case and its Restricted Subsidiaries
may not enter into sale and leaseback transactions involving a Principal
Property, except as described below. A "sale and leaseback transaction"
generally is an arrangement where Case or a Restricted Subsidiary leases
property for a period in excess of three years from a lessor (other than Case
or a Restricted Subsidiary), which property has been or is to be transferred by
Case or the Restricted Subsidiary to the lessor.
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However, Case and its Restricted Subsidiaries may enter into a sale and
leaseback transaction without being subject to the above restriction if:
. all Attributable Debt relating to all sale and leaseback transactions
concerning any Principal Property, including the newly created
Attributable Debt under the sale and leaseback transaction concerning any
Principal Property, plus
. all Funded Debt secured by a lien on any Principal Property, other than
Funded Debt secured by liens that may be disregarded when calculating the
amount of Funded Debt secured by a lien as described in "--Limitations on
Secured Funded Debt" above,
would not exceed 15% of Consolidated Net Tangible Assets.
This covenant does not apply to, and there will be excluded from
Attributable Debt in any computation under this covenant or under "--
Limitations on Secured Funded Debt" above, Attributable Debt with respect to
any sale and leaseback transaction if:
(1) Case or a Restricted Subsidiary is permitted to create Funded Debt
secured by a lien that may be disregarded for purposes of calculating the
amount of secured Funded Debt as described in "--Limitations on Secured
Funded Debt" above on the Principal Property to be leased, in an amount
equal to the Attributable Debt with respect to the sale and leaseback
transaction, without granting an equal or higher ranking lien to you and
all other holders of the debt securities;
(2) Case or a Restricted Subsidiary, within 270 days after the transfer
has been made, applies an amount in cash equal to the greater of:
. the net proceeds of the transfer of the Principal Property leased, or
. the fair market value of the Principal Property leased at the time of
entering into the arrangement, as determined by Case,
to the retirement of Funded Debt secured by a lien on any Principal
Property, other than such secured Funded Debt owned by Case or any
Restricted Subsidiary;
(3) Case or a Restricted Subsidiary applies the net proceeds of the
transfer of the Principal Property leased toward investment in another
Principal Property within 270 days before or after the transfer, as long as
the proceeds invested in the other Principal Property do not exceed
. the total cost of Case or any Restricted Subsidiary in the other
Principal Property, minus
. amounts secured by any purchase money or construction mortgages on
the Principal Property that was transferred; or
(4) the effective date of the arrangement is within 270 days of the
acquisition of the Principal Property or completion of construction and
commencement of operation of the Principal Property, whichever is later.
Restrictions on Funded Debt of Certain Restricted Subsidiaries. A Restricted
Subsidiary may not be liable for any Funded Debt, except:
. any Credit Subsidiary may be liable for Funded Debt; and
. all other Restricted Subsidiaries may be liable for Funded Debt if all
Funded Debt of Restricted Subsidiaries, including the newly created
Funded Debt of Restricted Subsidiaries, would not exceed 15% of
Consolidated Industrial Tangible Assets.
The following types of Funded Debt will be disregarded when calculating the
amount of Funded Debt for purposes of this restriction:
. Funded Debt of any corporation existing at the time it becomes a
Restricted Subsidiary; and
. indebtedness among Case and its subsidiaries and indebtedness between
Case's subsidiaries.
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This restriction will also not prohibit Restricted Subsidiaries from incurring
indebtedness in connection with any extension, renewal, refinancing,
replacement or refunding of any of their indebtedness, as long as the principal
amount of the indebtedness being extended, renewed, refinanced, replaced or
refunded is not increased. However, such indebtedness will be included in
computing Funded Debt under this restriction.
Definitions. Following are the meanings of some of the terms that are
important in understanding the above covenants.
"Attributable Debt" means, for each lease with a remaining term of more than
12 months, the present value of the rental payments to be made during the term
of the lease (without considering extensions), discounted, assuming semi-annual
compounding, at the rate per year equal to the greater of:
. the weighted average yield to maturity of all debt securities outstanding
under the Indenture (as computed under the Indenture); and
. the interest rate inherent in the lease, as determined in good faith by
Case.
"Consolidated Industrial Tangible Assets" means, at any date, the total
assets appearing on the industrial consolidated balance sheet of Case and its
Restricted Subsidiaries (other than Credit Subsidiaries) as at the applicable
fiscal quarter end of Case, minus intangible assets (as defined in the
Indenture).
"Consolidated Net Tangible Assets" means, at any date, the total assets
appearing on the consolidated balance sheet of Case and its Restricted
Subsidiaries as at the applicable fiscal quarter end of Case minus:
(a) all current liabilities (due within one year);
(b) applicable reserves;
(c) investments in and advances to subsidiaries that are not Restricted
Subsidiaries, and that are consolidated on the consolidated balance sheet
of Case and its subsidiaries; and
(d) intangible assets (as defined in the Indenture) and liabilities
relating to intangible assets as set forth on the consolidated balance
sheet for such quarter.
"Credit Subsidiary" means Case Credit Corporation and its subsidiaries and
any other subsidiary (including any securitization subsidiary (as defined in
the Indenture)) whose principal business consists of financing Case's dealers
or distributors or the acquisition or disposition of products, by dealers,
distributors or retail customers. Credit Subsidiaries will not include Case
Wholesale Receivables Inc. and any other securitization subsidiary that is a
subsidiary of Case Corporation and not of Case Credit Corporation.
"Principal Property" means any manufacturing plant or foundry located in the
U.S. and owned and operated by Case or any Restricted Subsidiary on or after
July 31, 1995, and any manufacturing equipment owned by Case or any Restricted
Subsidiary on or after July 31, 1995 located in that manufacturing plant.
"Restricted Subsidiary" means any subsidiary of Case other than
(a) a subsidiary
. formed for the purpose of engaging in securitization transactions (as
defined in the Indenture);
. whose indebtedness and other obligations are not guaranteed by Case
or any Restricted Subsidiary; and
. whose indebtedness does not subject Case's or any Restricted
Subsidiary's property to any lien, except liens:
. arising out of representations, warranties and covenants made in
the ordinary course of a securitization transaction; and
. arising from credit support relating to securitization
transactions that is customarily necessary or desirable; and
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(b) any subsidiary designated by Case's board of directors that does not have
a material interest in any Principal Property.
Events of Default
Any one of the following events will be an event of default for any series
of debt securities issued under the Indenture, including the old notes and new
notes:
(1) Case fails to pay any interest on the debt security within 30 days
after its due date;
(2) Case fails to pay principal of or any premium on the debt security
on its due date;
(3) Case fails to deposit any sinking fund or other payment on the debt
security on its due date;
(4) Case fails to perform or breach any of its other covenants or
warranties in the Indenture, unless the covenant or warranty does not apply
to your series of debt securities, for 60 days after Case receives a
written notice stating Case is in breach;
(5) Case becomes bankrupt or insolvent;
(6) Case defaults under any other indebtedness and, as a result of the
default, a principal amount of indebtedness exceeding $60 million is
declared due and payable prior to its maturity date and Case does not take
sufficient action specified in the Indenture to remedy that default; or
(7) any other event of default provided with respect to a particular
series of debt securities.
If any event of default with respect to any outstanding series of the debt
securities occurs and is not remedied as provided in the Indenture, either the
trustee or the holders of at least 25% of the outstanding principal amount of
that series of the debt securities may declare the entire principal amount of
that series of debt securities to be due and payable immediately. This is
called a declaration of acceleration. At any time after a declaration of
acceleration has been made, but before a judgment based on acceleration has
been obtained, the holders of a majority of the aggregate principal amount of
that series of outstanding debt securities may, under certain circumstances,
rescind the acceleration.
The Indenture provides that, subject to the duty of the trustee during
default to act with the required standard of care if an event of default
occurs, the trustee is not required to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the debt
securities, unless the holders have offered to the trustee reasonable
protection from losses and expenses, which is called "indemnity." If indemnity
is given, the holders of a majority of the principal amount of the outstanding
debt securities of any series may direct the time, method and place of
conducting any legal action for any remedy available to the trustee, or
exercising any of the trustee's powers with respect to that series of debt
securities.
You will not have the right to take legal action under the Indenture, unless
. you give the trustee written notice of an event of default that is not
remedied on time,
. the holders of at least 25% of the principal amount of your series of
outstanding debt securities have requested in writing, and offered
reasonable indemnity, to the trustee to take legal action, and
. the trustee has not received from the holders of a majority of the
principal amount of your series of the outstanding debt securities a
direction not to take legal action or otherwise has failed to take legal
action within 60 days.
However, these limitations do not apply to a suit instituted by a holder of a
debt security to enforce payment of the principal of and any premium or
interest on the holder's debt security on or after the due dates expressed in
the debt security.
Case is required to furnish to the trustee annually a statement as to its
performance of certain of its obligations under the Indenture and as to any
default in its performance.
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Modification and Waiver
Case may modify and amend the Indenture only if the trustee and the holders
of at least the majority of the principal amount of each series of the
outstanding debt securities issued under the Indenture and affected by the
modification or amendment consent to the amendment. Case may not make the
following amendments without the consent of the holders of all affected debt
securities:
(1) any change to the stated maturity of the principal of, or any
installment of principal of or interest on, any debt security;
(2) any reduction to the principal amount of, any premium, or unless
Case indicates otherwise in a prospectus supplement, interest on any debt
security including, in the case of an original issue discount security, the
amount payable upon acceleration;
(3) any change in the place or currency of payment of principal of, any
premium, or interest on any debt security;
(4) any changes that impair your right to take legal action for
enforcement of any payment on any debt security on or after its stated
maturity or, in the case of redemption, on or after the redemption date; or
(5) any reduction in the percentage of the principal amount of any
series of outstanding debt securities that must consent to modify or amend
the Indenture, to waive compliance with its provisions or to waive events
of default.
The holders of at least a majority of the principal amount of any series of
outstanding debt securities may, on behalf of all holders of that series, waive
Case's compliance with some of the restrictive provisions of the Indenture. The
holders of at least a majority of the principal amount of any series of
outstanding debt securities may, on behalf of all holders of that series, waive
any past default under the Indenture, except a default in the payment of
principal, premium or interest and a default in respect of a covenant or
provision of the Indenture that cannot be modified or amended without the
consent of each holder of the affected series of outstanding debt securities.
Consolidation, Merger and Sale of Assets
Case may not consolidate with or merge into any other person or, transfer
substantially all of its assets to any person. Case also may not permit any
person to merge into or consolidate with Case or transfer substantially all of
its asset to Case.
The above restrictions do not apply to:
(1) any successor to Case or purchaser of substantially all of Case's
assets that is organized under the laws of the United States of America,
any state or the District of Columbia, and assumes Case's obligations
relating to the debt securities;
(2) immediately after the transaction, no event of default, has occurred
or would occur; and
(3) if Case's properties or assets become subject to a lien that is not
permitted by the Indenture, Case or its successor grants you a lien on that
property that is equal or superior to the lien resulting from the
transaction.
Defeasance and Covenant Defeasance
The Indenture provides that, if the terms of any debt security permit, at
its option, Case:
(1) will be discharged from its obligations under the debt securities
except for its obligations to register the transfer of debt securities,
replace stolen, lost or mutilated debt securities, maintain paying agencies
and hold moneys for payment in trust; or
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(2) is not required to comply with certain restrictive covenants in the
Indenture, including those described under "--Certain Covenants of Case,"
and the event described in clause (4) under "--Events of Default" will no
longer be an event of default,
if Case deposits with the trustee to hold in trust a sufficient amount of money
or U.S. government obligations to make all required payments on the debt
securities of such series when the payments are due. The due dates may include
one or more redemption dates designated by Case. All payments must be made in
accordance with the terms of such series of debt securities. Case may establish
a trust arrangement of this type only if, among other things:
(a) no event of default has occurred or would occur on the date of the
deposit or on any later date specified in the Indenture if Case becomes
bankrupt or insolvent;
(b) the deposit will not cause the trustee to have any conflict of
interest with any of Case's other debt securities;
(c) the defeasance will not violate or be a default under the Indenture
or any of Case's agreements; and
(d) Case has delivered an opinion of counsel that states that the
holders will not recognize income, gain or loss for federal income tax
purposes as a result of the deposit or defeasance and will be subject to
federal income tax in the same manner as if the defeasance had not
occurred. The opinion of counsel, in the case of full defeasance described
in clause (1) above, must refer to and be based upon a published ruling of
the Internal Revenue Service, a private ruling of the Internal Revenue
Service addressed to Case, or otherwise be based on a change in federal
income tax laws after the date of the Indenture.
If Case does not comply with its remaining obligations under the Indenture
after a covenant defeasance and the series of debt securities are declared due
and payable because of the occurrence of any event of default, the amount of
money and U.S. government obligations on deposit with the trustee may be
insufficient to pay amounts due on that series of debt securities at the time
of the acceleration. However, Case will remain liable for such payments.
Concerning the Trustee
The Bank of New York is the trustee under the Indenture. The Bank of New
York is also trustee under certain indentures of Case Credit Corporation, a
subsidiary of Case. The Bank of New York performs services for Case and its
affiliates in the ordinary course of business and is a lender bank under
certain credit facilities of Case and its affiliates.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following discussion summarizes the material federal income tax
considerations of the issuance of the new notes and the exchange offer. This
summary does not discuss all aspects of federal income taxation that may be
relevant to particular holders of new notes, especially in light of a holder's
personal investment circumstances, or to certain types of holders subject to
special treatment under the federal income tax laws (for example, life
insurance companies, tax-exempt organizations and foreign corporations and
individuals who are not citizens or residents of the United States) and does
not discuss any aspects of state, local or foreign taxation. This discussion is
limited to those holders who will hold the new notes as "capital assets"
(generally, property held for investment) within the meaning of Section 1221 of
the Internal Revenue Code of 1986, as amended (the "Code").
This summary is based upon laws, regulations, rulings and decisions now in
effect and upon proposed regulations, all of which are subject to change
(possibly with retroactive effect) by legislation, administrative action or
judicial decision.
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Exchange Offer. The exchange of old notes for new notes pursuant to the
exchange offer should not be treated as a taxable "exchange" because the new
notes should not be considered to differ materially in kind or extent from the
old notes. Rather, the new notes received by a holder of the old notes should
be treated as a continuation of the old notes. As a result, there should be no
gain or loss to holders exchanging the old notes for the new notes pursuant to
the exchange offer.
Interest. A holder will be required to include in gross income the stated
interest on the old notes or the new notes in accordance with the holder's
method of tax accounting.
Tax Basis. Generally, a holder's tax basis in a note will initially be the
holder's purchase price for the note and will be decreased by the amount of any
principal payments received. If a holder exchanges an old note for a new note
pursuant to the exchange offer, the tax basis of the new note immediately after
such exchange should equal the holder's tax basis in the old note immediately
prior to the exchange.
Sale. The sale, exchange or other disposition of a note (other than pursuant
to the exchange offer) generally will be a taxable event. A holder generally
will recognize gain or loss equal to the difference between (a) the amount of
cash plus the fair market value of any property received upon such sale,
exchange or other taxable disposition of a note (other than in respect of
accrued interest on the note) and (b) the holder's adjusted tax basis in such
note. Such gain or loss will be capital gain or loss and would be long-term
capital gain or loss if the notes were held by the holder for the applicable
holding period (currently more than one year) at the time of such sale or other
disposition. The holding period of each new note would include the holding
period of the old notes exchanged therefor.
Purchasers of Notes at Other than Original Issuance. The above summary does
not discuss special rules which may affect the treatment of purchasers that
acquire notes other than at original issuance, including those provisions of
the Code relating to the treatment of "market discount" and "acquisition
premium." Any such purchaser should consult its tax advisor as to the
consequences to him of the acquisition, ownership and disposition of notes.
Backup Withholding. Unless a holder or other payee provides his correct
taxpayer identification number (employer identification number or social
security number) to Case (as payor) and certifies that such number is correct,
under the federal income tax backup withholding rules, generally 31% of (a) the
interest paid on the notes, and (b) proceeds of sale or other disposition of
the notes must be withheld and remitted to the United States Department of
Treasury. Therefore, each holder should complete and sign the Substitute Form
W-9 so as to provide the information and certification necessary to avoid
backup withholding. However, certain exchanging holders (including, among
others, certain foreign individuals) are not subject to these backup
withholding and reporting requirements. In order for a foreign individual to
qualify as an exempt foreign recipient, that exchanging holder must submit a
statement, signed under penalties of perjury, attesting to that individual's
exempt foreign status.
Withholding is not an additional federal income tax. Rather, the federal
income tax liability of a person subject to withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
The foregoing summary is included for general information only. Each holder
of notes should consult its tax advisor as to the specific tax consequences to
it of the exchange offer, including the application of and effect of state,
local, foreign and other tax laws.
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account as a result
of market-making activities or other trading activities in connection with the
exchange offer must acknowledge that it will deliver a prospectus
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in connection with any resale of such new notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other
trading activities.
Case will receive no proceeds in connection with the exchange offer or any
sale of new notes by broker-dealers. New notes received by broker-dealers for
their own account pursuant to the exchange offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new notes or a combination
of such methods of resale, at market prices prevailing at the time of resale,
at prices related to such prevailing market prices or negotiated prices. Any
such resale may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions or concessions
from any such broker-dealers or the purchasers of any such new notes. Any
broker-dealer that resells new notes that were received by it for its own
account pursuant to the exchange offer and any broker or dealer that
participates in a distribution of such new notes may be deemed to be an
"underwriter" within the meaning of the 1933 Act and any profit on any such
resale of new notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the 1933 Act. The
letter of transmittal states that by acknowledging that it will deliver, and by
delivering, a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the 1933 Act.
LEGAL MATTERS
Certain legal matters in connection with the new notes will be passed upon
for Case by Richard S. Brennan, General Counsel and Secretary of Case, and by
Mayer, Brown & Platt, Chicago, Illinois. In addition to his positions at Case,
Mr. Brennan is also a partner at Mayer, Brown & Platt. Mr. Brennan has advised
Case that, at March 31, 1999, he beneficially owned 34,000 shares of common
stock of Case and had options to purchase 10,000 shares of common stock of
Case.
EXPERTS
The audited financial statements and schedules included or incorporated by
reference in this prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as set forth in their reports with respect
thereto, and are included or incorporated by reference herein in reliance upon
the authority of that firm as experts in giving such reports.
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$300,000,000
Exchange Offer
Case Corporation
6 1/4% Notes due December 1, 2003
----------------
PROSPECTUS
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. Indemnification of Directors and Officers
Article V of the By-Laws of the Registrant include the following provisions:
Section 1. Right to Indemnification: The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment), any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans maintained or sponsored by the
Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent (an
"indemnitee"), against all expense, liability and loss (including attorneys'
fees), judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith, and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators. Subject to
Section 3 of this Article V, the Corporation shall be required to indemnify an
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if the initiation of such proceeding (or part thereof) by the
indemnitee was authorized by the Board.
Section 2. Prepayment of Expenses: The right to indemnification conferred
hereunder and all related rights shall be contract rights and shall include the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition, such advances to be paid by the
Corporation promptly after the receipt by the Corporation of a statement or
statements from the claimant requesting such advance or advances from time to
time; provided, however, that if the General Corporation Law of the State of
Delaware so requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any other
capacity in which service was or is rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified
hereunder or otherwise.
Section 3. Claims: To obtain indemnification under this Article V, a
claimant shall submit to the Corporation a written request, including therein
or therewith such documentation and information as is reasonably available to
the claimant and is reasonably necessary to determine whether and to what
extent the claimant is entitled to indemnification. Upon written request by a
claimant for indemnification pursuant to the first sentence of this paragraph,
a determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (i) if requested by the claimant,
by Independent Counsel (as defined below), or (ii) if no request is made by the
claimant for a determination by Independent Counsel, (a) by the Board by a
majority vote of a quorum consisting of Disinterested Directors (as defined
below), or (b) if a quorum of the Board consisting of Disinterested Directors
is not obtainable or, even if obtainable, such quorum of Disinterested
Directors so directs, by Independent Counsel in a written opinion to the Board,
a copy of which shall be delivered to the claimant, or (c) if a quorum of
Disinterested Directors so directs, by the stockholders of the Corporation. If
the determination of entitlement to indemnification is to be made by
Independent Counsel at the request of the claimant, the Independent Counsel
shall be selected by the Board unless there shall have occurred within two
years prior to the date of the commencement of the action, suit or proceeding
for which indemnification is
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claimed a "Change-in-Control" as defined in the Severance Agreements (as
defined on page 11 of the definitive proxy statement of the Corporation dated
April 17, 1998), in which case the Independent Counsel shall be selected by the
claimant unless the claimant shall request that such selection be made by the
Board. If it is so determined that the claimant is entitled to indemnification,
payment to the claimant shall be made promptly after such determination.
If a claim hereunder is not paid in full by the Corporation promptly after a
written claim pursuant hereto has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall also be paid the expense of prosecuting such claim. It shall
be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board, Independent
Counsel or stockholders) to have made a determination prior to the commencement
of such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board, Independent Counsel or
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
If a determination shall have been made pursuant to these By-Laws that the
claimant is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to the preceding
paragraph. The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant hereto that the indemnification procedures and
presumptions of this Article V are not valid, binding and enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the
provisions thereof.
Section 4. Nonexclusivity of Rights: The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred herein shall not be exclusive of any other right which
any person may have or hereafter acquire under applicable law, the Certificate
of Incorporation, these By-Laws, agreement, vote of stockholders or
Disinterested Directors or otherwise. No repeal or modification of this Article
V shall in any way diminish or adversely affect the rights of any director,
officer, employee or agent of the Corporation hereunder in respect of any
occurrence or matter arising prior to any such repeal or modification.
Section 5. Other Indemnification: The Corporation's obligation, if any, to
indemnify or advance expenses to any person who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such person has collected as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or nonprofit
entity.
Section 6. Amendment or Repeal: Any repeal or modification of the provisions
of this Article V shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of
such repeal or modification.
Section 7. Insurance: The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
To the extent that the Corporation maintains any policy or policies providing
such insurance, each
II-2
<PAGE>
such director or officer, and each such agent or employee to which rights to
indemnification have been granted as provided in Section 8 of this Article V,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
Case has purchased insurance which purports to insure the officers and
directors of Case, and of its subsidiary companies against certain liabilities
incurred by them in the discharge of their function as such officers and
directors except for liabilities resulting from their own malfeasance.
ITEM 21. Exhibits.
(a) A list of exhibits filed herewith is contained in the index to exhibits
which is incorporated herein by reference.
(b) Schedules of Case and its consolidated subsidiaries--
SCHEDULE II
CASE CORPORATION AND CONSOLIDATED SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
(Millions)
<TABLE>
<CAPTION>
Additions
Balance at Charged to Charged to
Beginning of Costs and Other Balance at
Description Year Expenses Accounts Deductions End of Year
- ------------------------ ------------ ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C>
Allowance for doubtful
accounts receivable:
Year ended December
31, 1998............. $(63) $(34) $-- $13(a) $(84)
---- ---- --- --- ----
Year ended December
31, 1997............. $(70) $ (1) $-- $ 8(b) $(63)
---- ---- --- --- ----
Year ended December
31, 1996............. $(67) $ (3) $-- $-- $(70)
---- ---- --- --- ----
</TABLE>
- --------
(a) Reflects $13 million for write-offs.
(b) Reflects $5 million for write-offs and $3 million for the impact of
exchange rate changes.
SCHEDULES OMITTED AS NOT REQUIRED OR INAPPLICABLE
Schedule I Condensed financial information of registrant
Schedule III Real estate and accumulated depreciation
Schedule IV Mortgage loans on real estate
Schedule V Supplemental Information Concerning Property
--Casualty Insurance Operations
(c) Not Applicable.
ITEM 22. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
II-3
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant, pursuant to the provisions described in Item 20, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that the claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(6) To respond to requests for information that is incorporated by reference
into the Prospectus pursuant to Item 4, 10(b), 11 or 13 of this form within one
business day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes information
contained in documents filed after the effective date of this Registration
Statement through the date of responding to the request.
(7) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in this Registration Statement when it
became effective.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Racine,
State of Wisconsin, on April 20, 1999.
Case Corporation
/s/ Jean-Pierre Rosso
By: _________________________________
Jean-Pierre Rosso
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Theodore
R. French, Richard S. Brennan and Peter Hong, and each of them, the true and
lawful attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and any and all documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jean-Pierre Rosso Chairman and Chief Executive April 20, 1999
____________________________________ Officer and Director
Jean-Pierre Rosso (Principal Executive
Officer)
/s/ Theodore R. French President, Financial April 20, 1999
____________________________________ Services, and Chief
Theodore R. French Financial Officer (Principal
Financial and Accounting
Officer)
/s/ Pei-Yuan Chia Director April 20, 1999
____________________________________
Pei-yuan Chia
/s/ Ronald E. Goldsberry Director April 20, 1999
____________________________________
Ronald E. Goldsberry
/s/ Jeffery T. Grade Director April 20, 1999
____________________________________
Jeffery T. Grade
/s/ Thomas R. Hodgson Director April 20, 1999
____________________________________
Thomas R. Hodgson
/s/ Katherine M. Hudson Director April 20, 1999
____________________________________
Katherine M. Hudson
/s/ Gerald Rosenfeld Director April 20, 1999
____________________________________
Gerald Rosenfeld
/s/ Theodore R. Tetzlaff Director April 20, 1999
____________________________________
Theodore R. Tetzlaff
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S> <C>
1 Purchase Agreement, dated as of December 2, 1998, between Case
Corporation, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Chase Securities Inc., Credit
Suisse First Boston Corporation, NationsBanc Montgomery
Securities LLC and Salomon Smith Barney Inc.
4(a) Indenture, dated as of July 31, 1995, between Case Corporation
and The Bank of New York (1)
4(b) Resolutions of the Board of Directors of Case Corporation
authorizing the offering of debt securities of Case in an
aggregate principal amount of up to $500,000,000
4(c) Form of Actions of the Authorized Officers of Case Corporation
authorizing the issuance of $300,000,000 aggregate principal
amount of 6 1/4% Notes due December 1, 2003, Series B
4(d) Form of 6 1/4% Note due December 1, 2003, Series B
4(e) Registration Rights Agreement, dated as of December 7, 1999,
between Case Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Chase Securities Inc., Credit Suisse First
Boston Corporation, NationsBanc Montgomery Securities LLC and
Salomon Smith Barney Inc.
5 Opinion of Mayer, Brown & Platt as to the legality of the
securities being registered
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Arthur Andersen LLP, Independent Public Accountants
for Case Corporation (Milwaukee, Wisconsin)
23(b) Consent of Mayer, Brown & Platt (contained in Exhibit 5)
24 Powers of attorney (contained on the signature page to this
Registration Statement)
25 Form T-1 Statement of eligibility under the Trust Indenture
Act of 1939 of The Bank of New York
99(a) Form of Letter of Transmittal
99(b) Form of Notice of Guaranteed Delivery
</TABLE>
- --------
(1) Filed as Exhibit 4(c) to Case's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995, and incorporated herein by reference.
<PAGE>
Exhibit 1
================================================================================
CASE CORPORATION
(a Delaware corporation)
$300,000,000
6.25% Notes due December 1, 2003
PURCHASE AGREEMENT
Dated: December 2, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 1. Representations and Warranties by the Company.................. 3
(a) Representations and Warranties................................. 3
(i) Similar Offerings..................................... 3
(ii) Offering Memorandum................................... 3
(iii) Incorporated Documents................................ 3
(iv) Financial Statements.................................. 4
(v) Due Incorporation and Good Standing of the Company.... 4
(vi) Due Incorporation and Good Standing of Subsidiaries... 5
(vii) Authorization of the Indenture and the Securities..... 5
(viii) Authorization of the Exchange Notes................... 6
(ix) Authorization of the Registration Rights Agreement.... 6
(x) No Consents, Approvals, Etc........................... 6
(xi) Absence of Defaults and Conflicts..................... 6
(xii) Authorization of this Agreement....................... 7
(xiii) Licenses and Permits.................................. 7
(xiv) Environmental Laws.................................... 7
(xv) Absence of Proceedings................................ 8
(xvi) Absence of Material Adverse Effect.................... 8
(xvii) Investment Company Status............................. 9
(xviii) Absence of Labor Disturbance.......................... 9
(xix) Rule 144A Eligibility................................. 9
(xx) No General Solicitation............................... 9
(xxi) No Registration Required.............................. 9
(xxii) No Directed Selling Efforts........................... 9
(xxiii) No Agreement for Filing a Registration Statement...... 10
(xxiv) Compliance with Rule 144A............................. 10
(xxv) Reporting Company..................................... 10
(b) Officer's Certificates......................................... 10
SECTION 2. Sale and Delivery to Initial Purchasers; Closing............... 10
(a) Securities..................................................... 10
(b) Payment........................................................ 10
(c) Qualified Institutional Buyer.................................. 11
(d) Denominations; Registration.................................... 11
SECTION 3. Covenants of the Company....................................... 11
(a) Offering Memorandum............................................ 11
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
(b) Notice and Effect of Material Events........................... 11
(c) Amendment to Offering Memorandum and Supplements............... 12
(d) Qualification of Securities for Offer and Sale................. 12
(e) Rating of Securities........................................... 12
(f) DTC............................................................ 13
(g) Use of Proceeds................................................ 13
(h) Restriction of Sale of Securities.............................. 13
SECTION 4. Payment of Expenses............................................ 13
(a) Expenses....................................................... 13
(b) Termination of Agreement....................................... 14
SECTION 5. Conditions of Initial Purchasers' Obligations.................. 14
(a) Accountants' Comfort Letter.................................... 14
(b) Absence of Certain Changes..................................... 14
(c) Opinion of Special Counsel for Company......................... 15
(d) Opinion of General Counsel for the Company..................... 17
(e) Opinion of Counsel for Initial Purchasers...................... 18
(f) Officers' Certificate.......................................... 18
(g) Bring-Down Comfort Letter...................................... 19
(h) Additional Documents........................................... 19
(i) Termination of Agreement....................................... 19
SECTION 6. Subsequent Offers and Resales of the Securities................ 19
(a) Offer and Sale Procedures...................................... 19
(i) Offers and Sales only to Institutional Accredited
Investors or Qualified Institutional Buyers........... 19
(ii) No General Solicitation............................... 20
(iii) Purchases by Non-Bank Fiduciaries..................... 20
(iv) Subsequent Purchaser Notification..................... 20
(v) Minimum Principal Amount.............................. 20
(vi) Restrictions on Transfer.............................. 21
(vii) Delivery of Offering Memorandum....................... 21
(b) Covenants of the Company....................................... 21
(i) Integration........................................... 21
(ii) Rule 144A Information................................. 21
(iii) Restriction on Repurchases............................ 21
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A....... 22
(d) Representations and Warranties of Initial Purchasers........... 22
</TABLE>
-ii-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 7. Indemnification................................................ 24
(a) Indemnification of Initial Purchasers.......................... 24
(b) Indemnification of Company..................................... 25
(c) Actions against Parties; Notification.......................... 25
(d) Settlement without Consent if Failure to Reimburse............. 26
SECTION 8. Contribution................................................... 26
SECTION 9. Representations, Warranties and Agreements to Survive Delivery. 28
SECTION 10. Default by One or More of the Initial Purchasers............... 28
SECTION 11. Notices........................................................ 29
SECTION 12. Parties........................................................ 29
SECTION 13. GOVERNING LAW AND TIME......................................... 29
SECTION 14. Effect of Heading.............................................. 29
SCHEDULES
Schedule A - List of Initial Purchasers
Schedule B - Pricing Information
</TABLE>
-iii-
<PAGE>
CASE CORPORATION
(a Delaware corporation)
$300,000,000
6.25% Notes due December 1, 2003
PURCHASE AGREEMENT
------------------
December 2, 1998
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Case Corporation, a Delaware corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill Lynch") and each of the other Initial Purchasers named in
Schedule A hereto (collectively, the "Initial Purchasers," which term shall also
include any initial purchaser substituted as hereinafter provided in Section 11
hereof), for whom Merrill Lynch is acting as representative (in such capacity,
the "Representative"), with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $300,000,000
aggregate principal amount of the Company's 6.25% Notes due December 1, 2003
(the "Securities"). The Securities are to be issued pursuant to an Indenture
dated as of July 31, 1995 (the "Indenture") between the Company and The Bank of
New York, as trustee (the "Trustee"). The Securities and the Exchange Notes (as
defined below) issuable in exchange therefor are collectively referred to herein
as the "Notes." Notes issued in book-entry form will be issued to Cede & Co. as
nominee of The Depository Trust Company ("DTC") pursuant to a letter agreement,
to be dated as of the Closing Time (as defined in Section 2(b)) (the "DTC
Agreement"), among the Company, the Trustee and DTC.
<PAGE>
-2-
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after the date of this Agreement. The Securities are to
be offered and sold through the Initial Purchasers without being registered
under the Securities Act of 1933, as amended (the "1933 Act"), in reliance upon
exemptions therefrom. Pursuant to the terms of the Securities and the Indenture,
investors that acquire Securities may only resell or otherwise transfer such
Securities if such Securities are hereafter registered under the 1933 Act or if
an exemption from the registration requirements of the 1933 Act is available
(including the exemption afforded by Rule 144A ("Rule 144A") or Regulation S
("Regulation S") of the rules and regulations promulgated under the 1933 Act by
the Securities and Exchange Commission (the "Commission")).
Holders (including subsequent transferees) of the Securities will have
the registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement") to be dated as of the Closing Time among the
Company and the Initial Purchasers and for so long as such Securities constitute
"Registrable Securities" (as defined in such agreement). Pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Commission, under the circumstances set forth therein, (i) a registration
statement under the 1933 Act (the "Exchange Offer Registration Statement")
relating to the Company's 6.25% Series B Notes due December 1, 2003 (the
"Exchange Notes"), to be offered in exchange for the Securities (such offer to
exchange being referred to as the "Exchange Offer") and (ii) a shelf
registration statement pursuant to Rule 415 under the 1933 Act (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, the "Notes Registration Statements") relating to the resale by
certain holders of the Securities and to use its reasonable efforts to cause
such Notes Registration Statements to be declared and remain effective and
usable for the periods specified in the Registration Rights Agreement and to
consummate the Exchange Offer.
The Company has prepared and will deliver to each Initial Purchaser,
on the date hereof or the next succeeding day, copies of a final offering
memorandum dated December 2, 1998 (the "Final Offering Memorandum"), for use by
such Initial Purchasers in connection with their solicitation of purchases of,
or offering of, the Securities. "Offering Memorandum" means, with respect to any
date or time referred to in this Agreement, the most recent offering memorandum
(whether the Final Offering Memorandum, or any amendment or supplement to such
document), including exhibits thereto and any documents incorporated therein by
reference, which has been prepared and delivered by the Company to the Initial
Purchasers in connection with their solicitation of purchases of, or offering
of, the Securities.
<PAGE>
-3-
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
SECTION 1. Representations and Warranties by the Company.
(a) Representations and Warranties. The Company represents and
warrants to each Initial Purchaser as of the date hereof and as of the Closing
Time referred to in Section 2(b) hereof, and agrees with each Initial Purchaser,
as follows:
(i) Similar Offerings. Neither the Company nor any of its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
(each, an "Affiliate"), has, directly or indirectly, solicited any offer to
buy, sold or offered to sell or otherwise negotiated in respect of, or will
solicit any offer to buy or offer to sell or otherwise negotiate in respect
of, in the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the Securities in
a manner that would require the Securities to be registered under the 1933
Act.
(ii) Offering Memorandum. The Offering Memorandum does not, and
at the Closing Time will not, include 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 that this representation, warranty and
agreement shall not apply to statements in or omissions from the Offering
Memorandum made in reliance upon and in conformity with information
furnished to the Company in writing by any Initial Purchaser through the
Representative expressly for use in the Offering Memorandum.
(iii) Incorporated Documents. The Offering Memorandum as
delivered from time to time shall incorporate by reference the most recent
Annual Report of the Company on Form 10-K filed with the Commission and
each Quarterly Report of the Company on Form 10-Q and each Current Report
of the Company on Form 8-K filed with the Commission since the end of the
fiscal year to which such Annual Report relates. The documents incorporated
or deemed to be incorporated by reference in the Offering Memorandum at the
time they were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder
<PAGE>
-4-
(the "1934 Act Regulations") and, when read together with the other
information in the Offering Memorandum, at the date of the Offering
Memorandum and at the Closing Time, do not and will not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iv) Financial Statements. The audited consolidated financial
statements of the Company and related schedules, if any, and notes included
or incorporated by reference in the Offering Memorandum comply in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations, were prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein) and fairly present the consolidated financial
condition, results of operations, cash flows, changes in equity and changes
in stockholders' equity of the Company on a consolidated basis at the dates
and for the periods presented. The unaudited consolidated financial
statements of the Company and the related notes included or incorporated by
reference in the Offering Memorandum present fairly the consolidated
financial condition, results of operations, cash flows, changes in equity
and changes in stockholders' equity of the Company at the dates and for the
periods to which they relate, subject to year-end audit adjustments, have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis (except as otherwise stated therein) and have
been prepared on a basis substantially consistent with that of the audited
financial statements referred to above, except as otherwise stated therein.
The Company's ratios of earnings to fixed charges (actual and, if any, pro
forma) included or incorporated by reference in the Offering Memorandum
under the caption "Ratio of Earnings to Fixed Charges" have been calculated
in compliance with Item 503(d) of Regulation S-K of the Commission.
(v) Due Incorporation and Good Standing of the Company. The
Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in
the Offering Memorandum; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in
which its ownership or leasing of property or the conduct of its business
requires such qualification, other than any failure to be so qualified or
in good standing as would not singly or in the aggregate with all such
other failures reasonably be expected to have a material adverse effect on
the assets, liabilities, results of operations or financial condition of
the Company and its con-
<PAGE>
-5-
solidated subsidiaries (as defined in Rule 1-02(x) of the Commission's
Regulation S-X), taken as a whole (a "Material Adverse Effect").
(vi) Due Incorporation and Good Standing of Subsidiaries. Each
subsidiary (including, if applicable, partnerships of which the Company is
a general partner) of the Company that meets the conditions for a
"significant subsidiary" set forth in Rule 1-02(w) of the Commission's
Regulation S-X (collectively, the "Subsidiaries") is duly organized and
validly existing as a corporation or partnership in good standing (if
applicable) under the laws of the jurisdiction of its incorporation or
formation, has the corporate or other power and authority to own, lease and
operate its properties and to conduct its business as described in the
Offering Memorandum and is duly qualified to transact business as a foreign
corporation or partnership and is in good standing (if applicable) in each
jurisdiction in which the conduct of its business or its ownership, leasing
or operation of property requires such qualification, other than any
failure to be so qualified or in good standing as would not singly or in
the aggregate with all such other failures reasonably be expected to have a
Material Adverse Effect.
(vii) Authorization of the Indenture and the Securities. The
Indenture has been duly authorized by the Company and has been duly
qualified under the Trust Indenture Act; the Indenture complies as to form
in all material respects with the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"); the Indenture has been
duly executed and delivered by the Company and constitutes the valid and
legally binding obligation of the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles; the Securities have been duly authorized
by the Company; and when the Securities are delivered and paid for pursuant
to this Agreement at the Closing Time, such Securities will have been duly
executed, authenticated, issued and delivered by the Company and will
conform in all material respects to the description thereof contained in
the Offering Memorandum, and such Securities will constitute valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to public policy
considerations and to general equity principles. At the Closing Time, the
Indenture and the Securities will be in substantially the respective forms
previously delivered to the Initial Purchasers.
<PAGE>
-6-
(viii) Authorization of the Exchange Notes. The Exchange Notes
have been duly authorized by the Company. When the Exchange Notes are
issued, executed and authenticated in the manner provided for by the terms
of the Exchange Offer and the Indenture, the Exchange Notes will have been
duly executed, authenticated, issued and delivered by the Company and will
conform in all material respects to the description thereof contained in
the Offering Memorandum and such Exchange Notes will constitute valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights, to public policy
considerations and to general equitable principles.
(ix) Authorization of the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the
Company and will constitute the valid and legally binding obligation of the
Company in accordance with its terms, subject, (i) as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting enforcement
of creditors' rights, to public policy considerations and to general
equitable principles, and (ii) as to enforcement of rights to
indemnification and contribution thereunder, to federal or state securities
laws or regulations or the public policy underlying such laws or
regulations. At the Closing Time, the Registration Rights Agreement will
conform in all material respects to the description thereof contained in
the Offering Memorandum and will be in substantially the form previously
delivered to the Initial Purchasers.
(x) No Consents, Approvals, Etc. No consent, approval,
authorization or order of, or filing with, any governmental agency or body
or any court is required for the consummation of the transactions
contemplated by this Agreement and the Registration Rights Agreement
(including, without limitation, the execution, delivery and performance of
this Agreement, the Indenture, the Securities, the Exchange Notes and the
Registration Rights Agreement) in connection with the issuance and sale of
the Securities by the Company pursuant to this Agreement and the issuance
and exchange by the Company of the Exchange Notes pursuant to the Exchange
Offer, except such as are required under the 1933 Act and the Trust
Indenture Act in respect of the Exchange Offer and such as may be required
under state securities laws.
(xi) Absence of Defaults and Conflicts. The execution, delivery
and performance of the Indenture, this Agreement and the Registration
Rights Agreement
<PAGE>
-7-
and the issuance and sale of the Securities and the issuance and exchange
of the Exchange Notes and compliance with the terms and provisions hereof
and thereof do not and will not (i) contravene any provision of the
certificate of incorporation, by-laws or other organizational documents of
the Company or of any of the Subsidiaries, or (ii) conflict with or result
in a breach or violation of any of the terms and provisions of, or
constitute a default under (including, without limitation, any event which
with notice or lapse of time, or both, would constitute a default under),
or result in the creation or imposition of any lien, charge or encumbrance
upon any assets or properties of the Company or of any of the Subsidiaries
under, any statute, rule, regulation, order or decree of any governmental
agency or body or any court having jurisdiction over any of them or any of
their respective properties, assets or operations, or any indenture,
mortgage, loan agreement, note or other agreement or instrument for
borrowed money, any guarantee of any agreement or instrument for borrowed
money or any lease, permit, license or other agreement or instrument to
which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of the
properties, assets or operations of any of them is subject, other than any
such breach, violation, default, lien, charge or encumbrance as would not
singly or in the aggregate with all such other breaches, violations,
defaults, liens, charges or encumbrances reasonably be expected to have a
Material Adverse Effect.
(xii) Authorization of this Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(xiii) Licenses and Permits. The Company and the Subsidiaries
have such certificates, permits, licenses, franchises, consents, approvals,
orders, authorizations and clearances from appropriate governmental
agencies and bodies ("Licenses") as are necessary to own, lease or operate
their properties and to conduct their businesses in the manner described in
the Offering Memorandum, and all such Licenses are valid and in full force
and effect, other than any failure to have any such License or any failure
of any such License to be valid and in full force and effect as would not
singly or in the aggregate with all such other failures have a Material
Adverse Effect.
(xiv) Environmental Laws. Except as set forth in the Offering
Memorandum, the properties, assets and operations of the Company and the
Subsidiaries are in compliance in all material respects with all applicable
Federal, state, local and foreign laws, rules and regulations, orders,
decrees, judgments, permits and licenses relating to public and worker
health and safety and to the protection and clean-up of the natural
environment and activities or conditions related thereto, including,
without limitation, those relating to the generation, handling, disposal,
transportation or
<PAGE>
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release of hazardous materials (collectively, "Environmental Laws"), other
than any such failure to be in compliance as would not singly or in the
aggregate with all such other failures known to the Company reasonably be
expected to have a Material Adverse Effect. With respect to such
properties, assets and operations, including any previously owned, leased
or operated properties, assets or operations, to the best knowledge of the
Company and except as set forth in the Offering Memorandum, there are no
past, present or reasonably anticipated future events, conditions,
circumstances, activities, practices, incidents, actions or plans of the
Company or any of the Subsidiaries that may interfere with or prevent
compliance or continued compliance in all material respects with applicable
Environmental Laws, other than any such interference or prevention as would
not singly or in the aggregate with any such other interference or
prevention known to the Company reasonably be expected to have a Material
Adverse Effect.
(xv) Absence of Proceedings. Except as set forth in the Offering
Memorandum, there are no pending actions, suits, proceedings or
investigations against or affecting the Company or any of the Subsidiaries,
or with respect to which the Company or any of the Subsidiaries is
responsible by way of indemnity or otherwise, that would singly or in the
aggregate with all such other actions, suits, investigations or proceedings
reasonably be expected to have a Material Adverse Effect, or reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations under this Agreement, the Indenture, the
Registration Rights Agreement, the Securities or the Exchange Notes; and,
to the best knowledge of the Company, except as set forth in the Offering
Memorandum, no such actions, suits, proceedings or investigations are
threatened.
(xvi) Absence of Material Adverse Effect. Since the date of the
latest audited financial statements of the Company included or incorporated
by reference in the Offering Memorandum, except as disclosed in or
contemplated by the Offering Memorandum: (A) neither the Company nor any
Subsidiary has sustained any material loss or interference with its
consolidated business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance); (B) there has been
no material increase in the long-term indebtedness of the Company, no
material change in the capital stock of the Company and no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock not consistent with past practice; and (C) there has
not been or become known any Material Adverse Effect, or any development
that could singly or in the aggregate with all other developments
reasonably be expected to result in a Material Adverse Effect.
<PAGE>
-9-
(xvii) Investment Company Status. The Company is not and, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Offering
Memorandum, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(xviii) Absence of Labor Disturbance. Except as set forth in the
Offering Memorandum, no labor disturbance by the employees of the Company
or any of the Subsidiaries exists or, to the best knowledge of the Company,
is threatened that would singly or in the aggregate with all such other
labor disturbances reasonably be expected to have a Material Adverse
Effect.
(xix) Rule 144A Eligibility. The Securities are eligible for
resale pursuant to Rule 144A and will not be, at the Closing Time, of the
same class as securities listed on a national securities exchange
registered under Section 6 of the 1934 Act, or quoted in a U.S. automated
interdealer quotation system.
(xx) No General Solicitation. None of the Company, its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
("Affiliates"), or any person acting on its or any of their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xxi) No Registration Required. Assuming (i) the accuracy of the
representations and warranties of the Initial Purchasers set forth in
Section 2(c) hereof and compliance by the Initial Purchasers with the
provisions of Sections 6(a) and 6(c) hereof and (ii) the accuracy of the
representations made by each Subsequent Purchaser of the Securities under
Regulation S of the 1933 Act, as to such Subsequent Purchaser not being a
"U.S. Person," within the meaning of Rule 902 of Regulation S of the 1933
Act, it is not necessary in connection with the offer, sale and delivery of
the Securities to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering Memorandum to
register the Securities under the 1933 Act.
(xxii) No Directed Selling Efforts. With respect to those Securities
sold in reliance on Regulation S, (A) none of the Company, its Affiliates
or any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has engaged or
will engage in any directed selling efforts within the meaning of
Regulation S and (B) each of the Company and its Affiliates and any person
acting on its or their behalf (other than the Initial Purchasers,
<PAGE>
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as to whom the Company makes no representation) has complied and will
comply with the offering restrictions requirement of Regulation S.
(xxiii) No Agreement for Filing a Registration Statement. There are
no persons with registration rights or other similar rights to have any
debt securities registered pursuant to any registration statement or
otherwise registered by the Company under the 1933 Act, except persons
having such rights pursuant to the Registration Rights Agreement.
(xxiv) Compliance with Rule 144A. The Final Offering Memorandum,
as of its date, contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the 1933 Act.
(xxv) Reporting Company. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the 1934 Act.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Initial Purchasers shall be deemed a representation and warranty
by the Company to each Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Initial Purchaser, severally and not jointly, and
each Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities which such Initial Purchaser
may become obligated to purchase pursuant to the provisions of Section 11
hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of Mayer, Brown &
Platt, 190 S. LaSalle Street, Chicago, Illinois 60603, or at such other place as
shall be agreed upon by the Representative and the Company, at 9:00 A.M.
(eastern standard time) on the 3rd business day after the date hereof (unless
postponed in accordance with the provisions of Section 11), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery being
herein called the "Closing Time").
<PAGE>
-11-
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representative for the respective accounts of the Initial Purchasers of
certificates for the Securities to be purchased by them. It is understood that
each Initial Purchaser has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder.
(c) Qualified Institutional Buyer. Each Initial Purchaser severally
and not jointly represents and warrants to, and agrees with, the Company that it
is a "qualified institutional buyer" within the meaning of Rule 144A under the
1933 Act (a "Qualified Institutional Buyer") and an "accredited investor" within
the meaning of Rule 501(a) under the 1933 Act (an "Accredited Investor").
(d) Denominations; Registration. Certificates for the Securities
shall be in such denominations (with minimum denominations of $100,000 and
integral multiples of $1,000 thereof) and registered in such names as the
Representative may request in writing at least two full business day before the
Closing Time. One or more Securities in definitive global form, registered in
the name of Cede & Co., as nominee of DTC, having an aggregate amount
corresponding to the aggregate amount of the Securities sold to Subsequent
Purchasers (collectively, the "Global Note"), shall be delivered by the Company
to the Initial Purchasers (or as the Initial Purchasers direct) in each case
with any transfer taxes thereon duly paid by the Company, against payment by the
Initial Purchasers of the purchase price therefor in accordance with this
Section 2. The Global Note shall be made available for examination by the
Initial Purchasers in The City of New York not later than 10:00 A.M. on the
business day prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possibly, will
furnish to each Initial Purchaser, without charge, such number of copies of the
Offering Memorandum and any amendments and supplements thereto and documents
incorporated by reference therein as such Initial Purchaser may reasonably
request.
(b) Notice and Effect of Material Events. The Company will promptly
notify each Initial Purchaser, and confirm such notice in writing, of (x) any
filing made by the Company of information relating to the offering of the
Securities with any securities ex-
<PAGE>
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change or any other regulatory body in the United States or any other
jurisdiction, and (y) prior to the completion of the placement of the Securities
by the Initial Purchasers as evidenced by a notice in writing from the Initial
Purchasers to the Company, any event shall occur as a result of which it is
necessary, in the reasonable opinion of any of the Company, its counsel, the
Initial Purchasers or counsel for the Initial Purchasers, to amend or supplement
the Offering Memorandum in order that the Offering Memorandum not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances then existing, or if, in the opinion of the Company, its counsel,
the Initial Purchasers or counsel for the Initial Purchasers, such amendment or
supplement is necessary to comply with applicable law, the Company will
forthwith amend or supplement the Offering Memorandum by preparing and
furnishing to each Initial Purchaser an amendment or amendments of, or a
supplement or supplements to, the Offering Memorandum (in form and substance
satisfactory in the reasonable opinion of counsel for the Initial Purchasers) so
that, as so amended or supplemented, the Offering Memorandum will not include 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
existing at the time it is delivered to a Subsequent Purchaser, not misleading,
or so that the Offering Memorandum, as so amended or supplemented, shall comply
with applicable law, as the case may be.
(c) Amendment to Offering Memorandum and Supplements. The Company
will advise each Initial Purchaser promptly of any proposal to amend or
supplement the Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers, which consent will not
be unreasonably withheld or delayed, unless in the opinion of counsel for the
Company such amendment or supplement is required by law. Neither the consent of
the Initial Purchasers, nor the Initial Purchasers' delivery of any such
amendment or supplement, shall constitute a waiver of any of the conditions set
forth in Section 5 hereof.
(d) Qualification of Securities for Offer and Sale. The Company will
use its reasonable best efforts, in cooperation with the Initial Purchasers, to
qualify the Securities for offering and sale under the applicable securities
laws of such jurisdictions as the Representative may reasonably designate and
will maintain such qualifications in effect as long as required for the sale of
the Securities; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
<PAGE>
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("S&P"), and Moody's Investors Service Inc. ("Moody's") to provide their
respective credit ratings of the Securities.
(f) DTC. The Company will cooperate with the Representative and use
its best efforts to permit the Securities to be eligible for clearance and
settlement through the facilities of DTC.
(g) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds."
(h) Restriction of Sale of Securities. During a period of seven (7)
business days from the date of the Offering Memorandum, the Company will not,
without the prior written consent of the Representative, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any other dollar denominated debt securities issued by the
Company and having a maturity of more than one year from the date of issue or
securities of the Company that are convertible into, or exchangeable for, the
Securities or such other debt securities (other than (i) the Exchange Notes,
(ii) any debt securities convertible into, or exchangeable for, equity
securities of the Company and (iii) any debt securities of another entity
acquired by the Company or assumed by the Company in connection with an
acquisition of the assets of such entity, which debt securities were (a)
existing prior to such acquisition and (b) not issued in connection with, or in
contemplation of, such acquisition).
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and any filing of the Offering Memorandum (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to the Initial Purchasers of this Agreement,
any Agreement among Initial Purchasers, the Indenture and such other documents
as may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Initial Purchasers, including any charges
of DTC in connection therewith, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Initial Purchasers in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the fees and
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee in
<PAGE>
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connection with the Indenture and the Securities, and (vii) any fees payable in
connection with the rating of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 hereof (other than
pursuant to clauses (iii), (iv) or (v) of Section 5(b)), the Company shall
reimburse the Initial Purchasers for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions.
(a) Accountants' Comfort Letter. On or prior to the date of this
Agreement, the Representative shall have received a letter, dated the date of
delivery thereof, of Arthur Andersen LLP in form and substance satisfactory to
the Representative, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(b) Absence of Certain Changes. Subsequent to the execution of this
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly, the business or
properties of the Company or its subsidiaries which, in the judgment of a
majority in interest of the Initial Purchasers including the Representative,
materially impairs the investment quality of the Securities; (ii) any
downgrading in the rating of any debt securities or preferred stock of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the 1933 Act), or any public
announcement that any such organization has under surveillance or review with
possible negative implications its rating of any debt securities or preferred
stock of the Company; (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Initial Purchasers including the Representative, the
effect of any such out-
<PAGE>
-15-
break, escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Securities.
(c) Opinion of Special Counsel for Company. At the Closing Time, the
Representative shall have received the signed opinion, dated as of the Closing
Time, of Mayer, Brown & Platt, special counsel for the Company, or other counsel
for the Company reasonably satisfactory to the Representative, substantially to
the effect that:
(i) the Company is an existing corporation in good standing under the
laws of the State of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the Offering
Memorandum; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions within the United
States of America in which its ownership or leasing of property or the
conduct of its business requires such qualification and where the failure
to be so qualified or in good standing would have a material adverse effect
upon its operations or financial condition;
(ii) the Indenture and the Registration Rights Agreement have each
been duly authorized, executed and delivered by the Company, the Indenture
has been duly qualified under the 1939 Act and the Indenture and the
Registration Rights Agreement (assuming the due authorization, execution
and delivery thereof by the Initial Purchasers) constitute valid and
legally binding obligations of the Company enforceable against the Company
in accordance with their respective terms, subject, (i) as to
enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, to public policy considerations
and to general equity principles and (ii) as to enforceability of rights to
indemnification and contribution thereunder, to limitations imposed by
federal or state securities laws or regulations or the public policy
underlying such laws or regulations; the Indenture complies as to form in
all material respects with the requirements of the 1939 Act; the Securities
have been duly authorized by the Company; the Securities have been duly
executed, authenticated and delivered by the Company; the Securities
constitute, and any Exchange Notes, when executed, authenticated, issued
and delivered in the manner provided in the Indenture and, with respect to
the Exchange Notes, exchanged as described in the Offering Memorandum
pursuant to the Exchange Offer, will constitute, valid and legally binding
obligations of the Company enforceable against the Company in accordance
with their respective terms, subject, as to enforceability, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights,
to public policy considerations and to general equity principles; and the
Securities conform, and any Exchange Notes, when so issued and delivered
and exchanged, will conform, in all
<PAGE>
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material respects to the respective descriptions thereof contained in the
Offering Memorandum;
(iii) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale by the Company of the Securities or
the issuance or exchange of the Exchange Notes by the Company pursuant to
the Exchange Offer, except such as are required and have been obtained and
made under the 1939 Act and, in connection with the issuance and exchange
of the Exchange Notes pursuant to the Exchange Offer, under the 1933 Act
and the 1939 Act and such as may be required under state securities laws
(it being understood that such opinion may be limited to such consents,
approvals, authorizations, orders and filings which, in such counsel's
experience, are customarily applicable to transactions of the type
contemplated by this Agreement, the Indenture and the Registration Rights
Agreement);
(iv) the execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement and the issuance and sale
by the Company of the Securities and the issuance and exchange by the
Company of the Exchange Notes pursuant to the Exchange Offer and compliance
with the terms and provisions thereof will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any material statute, rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company, any
Subsidiary incorporated in the United States of America or any of their
respective properties known to such counsel, or the charter or by-laws of
the Company or any such Subsidiary; and the Company has full power and
authority to authorize, issue and sell the Securities as contemplated by
this Agreement and to authorize, issue and exchange the Exchange Notes as
contemplated by the Registration Rights Agreement;
(v) such counsel has no reason to believe that the Offering
Memorandum, as of its date or as of the Closing Time, or any amendment or
supplement thereto, as of its date or as of the Closing Time, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, it being
understood that such counsel need express no opinion as to the financial
statements or other financial and statistical data contained in the
Offering Memorandum;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company;
<PAGE>
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(vii) each document filed pursuant to the 1934 Act (other than the
financial statements, schedules and other financial and statistical data
included therein, as to which such counsel need express no opinion) and
incorporated or deemed to be incorporated by reference in the Offering
Memorandum complied as to form in all material respects with the applicable
requirements of the 1934 Act when so filed; and
(viii) assuming (a) that the representations and warranties of the
Initial Purchasers contained in Section 2(c) of this Agreement are true,
correct and complete, (b) compliance by the Company and the Initial
Purchasers with their covenants in Section 6 hereof and (c) the accuracy of
the representations and warranties deemed made by each purchaser of the
Securities in accordance with the Offering Memorandum, it is not necessary
in connection with the offer, sale and delivery of the Securities to the
Initial Purchasers under, or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with, this Agreement to
register the Securities under the 1933 Act.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
Representative on or prior to the Closing Time.
(d) Opinion of General Counsel for the Company. The Representative
shall have received the signed opinion, dated as of the Closing Time, of Richard
S. Brennan, General Counsel and Secretary of the Company, substantially to the
effect that:
(i) to the best of his knowledge, no consent, approval or
authorization of any third party is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance
or sale by the Company of the Securities and the issuance and exchange by
the Company of the Exchange Notes, except such as have been obtained and
made and are in full force and effect and such as may be required under
state securities laws or such as may be required under the 1933 Act and the
1939 Act in connection with the performance of the Registration Rights
Agreement;
(ii) the execution, delivery and performance of the Indenture, this
Agreement and the Registration Rights Agreement and the issuance and sale
by the Company of the Securities and the issuance and exchange by the
Company of the Exchange Notes and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under (including, without
limitation, any event or condition which, with notice or
<PAGE>
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lapse of time, or both, would constitute a default under), any material
agreement or instrument known to such counsel to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is bound or
to which any of the properties of the Company or any Subsidiary is subject;
(iii) except as set forth in the Offering Memorandum, there are no
material pending legal proceedings known to such counsel to which the
Company or any Subsidiary is a party or of which the property of the
Company or any Subsidiary is the subject, and to the best knowledge of such
counsel no such proceeding is contemplated; and
(iv) such counsel has no reason to believe that the Offering
Memorandum, as of its date or as of the Closing Time, or any amendment or
supplement thereto, as of its date or as of the Closing Time, contained or
contains any untrue statement of a material fact or omitted or omits to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no opinion
as to the financial statements or other financial or statistical data
contained in the Offering Memorandum.
Such counsel in rendering such opinion may rely as to certain matters
of fact on certificates of officers of the Company and of public officials;
provided, however, that such certificates shall have been delivered to the
Representatives on or prior to the Closing Time.
(e) Opinion of Counsel for Initial Purchasers. At the Closing Time,
the Representative shall have received the favorable opinion, dated as of the
Closing Time, of Cahill Gordon & Reindel, counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to the incorporation of the Company and the
matters set forth in clauses (ii) (assuming the due authorization, execution and
delivery of each of the Indenture and the Registration Rights Agreement by each
party thereto), (v), (vi) and (viii) of subsection (c) of this Section 5. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representative. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public officials.
(f) Officers' Certificate. The Initial Purchasers shall have received
a certificate or certificates, dated the Closing Time, of the President or any
Vice President and a
<PAGE>
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principal financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall state that
the representations and warranties of the Company in this Agreement are true and
correct in all material respects, that the Company has complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Time, that, subsequent to the date of the most recent financial
statements in the Offering Memorandum, there has been no material adverse change
in the financial position or results of operations of the Company or its
subsidiaries taken as a whole except as set forth in or contemplated by the
Offering Memorandum or as described in such certificate and reasonably
acceptable to the Representative.
(g) Bring-Down Comfort Letter. The Initial Purchasers shall have
received a letter, dated the Closing Time, of Arthur Andersen LLP to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (a) of this Section, except that the specified date referred to in
such subsection will be a date not more than three days prior to the Closing
Time for the purposes of this subsection.
(h) Additional Documents. At the Closing Time, counsel for the
Initial Purchasers shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated.
(i) Termination of Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representative by notice to the Company
at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
4 and except that Sections 1, 7, 8 and 9 shall survive any such termination and
remain in full force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Company hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) Offers and Sales only to Institutional Accredited Investors or
Qualified Institutional Buyers. Offers and sales of the Securities shall
only be made (A) to persons whom the offeror or seller reasonably believes
to be qualified institutional buyers (as defined in Rule 144A under the
1933 Act), (B) to a limited number of other institutional accredited
investors (as such term is defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D) that the offeror or seller reasonably believes to be
<PAGE>
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and, with respect to sales and deliveries, that are Accredited Investors
("Institutional Accredited Investors"), (C) to non-U.S. persons outside the
United States, as defined in Regulation S under the 1933 Act, to whom the
offeror or seller reasonably believes offers and sales of the Securities
may be made in reliance upon Regulation S under the 1933 Act. Each Initial
Purchaser severally agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws
thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Securities in such
jurisdictions.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be
used in the United States in connection with the offering or sale of the
Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or more
third parties, each third party shall, in the judgment of the applicable
Initial Purchaser, be an Institutional Accredited Investor or a Qualified
Institutional Buyer or a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States
that the Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933
Act in reliance on Rule 144A or in accordance with another exemption from
registration under the 1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1) to the Company, (2)
outside the United States in accordance with Regulation S, or (3) inside
the United States in accordance with (x) Rule 144A to a person whom the
seller reasonably believes is a Qualified Institutional Buyer that is
purchasing such Securities for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any one
Subsequent Purchaser will be for less than U.S. $100,000 principal amount
and no Security will be issued in a smaller principal amount. If the
Subsequent Purchaser is a non-bank fiduciary acting on behalf of others,
each person for whom it is acting must purchase at least U.S. $100,000
principal amount of the Securities.
<PAGE>
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(vi) Restrictions on Transfer. The transfer restrictions and the
other provisions set forth in the Offering Memorandum under the heading
"Notice to Investors," including the legend required thereby, shall apply
to the Securities except as otherwise agreed by the Company and the Initial
Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each purchaser of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company. The Company covenants with each
Initial Purchaser as follows:
(i) Integration. The Company agrees that it will not and will
cause its Affiliates not to solicit any offer to buy or make any offer or
sale of, or otherwise negotiate in respect of, securities of the Company of
any class if, as a result of the doctrine of "integration" referred to in
Rule 502 under the 1933 Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Securities by the Company to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by Rule
144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Company agrees that, in order
to render the Securities eligible for resale pursuant to Rule 144A under
the 1933 Act, while any of the Securities remain outstanding, it will make
available, upon request, to any holder of Securities or prospective
purchasers of Securities the information specified in Rule 144A(d)(4),
unless the Company furnishes information to the Commission pursuant to
Section 13 or 15(d) of the 1934 Act (such information, whether made
available to holders or prospective purchasers or furnished to the
Commission, is herein referred to as "Additional Information").
(iii) Restriction on Repurchases. Until the expiration of two
years after the original issuance of the Securities, the Company will not,
and will cause its Affiliates not to, purchase or agree to purchase or
otherwise acquire any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 1933 Act), whether as
beneficial owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the ordinary course
of business in unsolicited broker's transactions) unless, immediately upon
<PAGE>
-22-
any such purchase, the Company or any Affiliate shall submit such
Securities to the Trustee for cancellation.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
Initial Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
its distribution at any time and (ii) otherwise until forty days after the later
of the date upon which the offering of the Securities commences and the Closing
Time, only in accordance with Rule 903 of Regulation S, or another applicable
exemption from the registration provisions of the 1933 Act or Rule 144A under
the 1933 Act. Accordingly, neither the Initial Purchasers, their affiliates nor
any persons acting on their behalf have engaged or will engage in any directed
selling efforts with respect to Securities, and the Initial Purchasers, their
affiliates and any person acting on their behalf have complied and will comply
with the offering restriction requirements of Regulation S. Each Initial
Purchaser severally agrees that, at or prior to confirmation of a sale of
Securities (other than a sale of Securities pursuant to Rule 144A) it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it or through it during the
restricted period a confirmation or notice to substantially the following
effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to or for the account or benefit of
U.S. persons (i) as part of their distribution at any time and (ii)
otherwise until forty days after the later of the date upon which the
offering of the Securities commenced and the date of closing, except in
either case in accordance with Regulation S, Rule 144A under the Securities
Act or another exemption from the registration requirements of the 1933
Act. Terms used above have the meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by Regulation
S.
(d) Representations and Warranties of Initial Purchasers. Each
Initial Purchaser severally represents and agrees that it has not entered and
will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
In addition, each Initial Purchaser severally represents and agrees
that:
<PAGE>
-23-
(i) except to the extent permitted under U.S. Treas. Reg. (S) 1.163-
5(c)(2)(i)(D) (the "D Rules"), (x) it has not offered or sold, and during
the restricted period will not offer or sell, Securities in bearer form to
a person who is within the United States or its possessions or to a United
States person, and (y) such Initial Purchaser has not delivered and will
not deliver within the United States or its possessions definitive
Securities in bearer form that are sold during the restricted period;
(ii) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Securities in bearer form are
aware that such Securities may not be offered or sold during the restricted
period to a person who is within the United States or its possessions or to
a United States person, except as permitted by the D Rules;
(iii) if such Initial Purchaser is a United States person, it
represents that it is acquiring the Securities in bearer form for purposes
of resale in connection with their original issuance and, if such Initial
Purchaser retains Securities in bearer form for its own account, it will
only do so in accordance with the requirements of U.S. Treas. Reg. (S)
1.163-5(c)(2)(i)(D)(6); and
(iv) with respect to each affiliate (if any) that acquires from such
Initial Purchaser Securities in bearer form for the purposes of offering or
selling such Notes during the, restricted period, such Initial Purchaser
either (A) hereby severally represents and agrees on behalf of such
affiliate (if any) to the effect set forth in sub-paragraphs (i), (ii) and
(iii) of this paragraph or (B) severally agrees that it will obtain from
such affiliate (if any) for the benefit of the Company the representations
and agreements contained in sub-paragraphs (i), (ii) and (iii) of this
paragraph.
Terms used in the above paragraph have the meanings given to them by the United
States Internal Revenue Code and Regulations thereunder, including the D Rules.
In addition, under U.S. Treas. Reg. (S)1.163-5(c)(2)(i)(C) (the "C
Rules"), Securities in bearer form must be issued and delivered outside the
United States and its possessions in connection with their original issuance.
Each Initial Purchaser severally represents and agrees that it has not offered,
sold or delivered, and will not offer, sell or deliver, directly or indirectly,
Securities in bearer form within the United States or its possessions in
connection with the original issuance. Further, each Initial Purchaser severally
represents and agrees in connection with the original issuance of Securities in
bearer form, it has not communicated, and will not communicate, directly or
indirectly, with a prospective purchaser if such purchaser is within the United
States or its possessions and will not otherwise
<PAGE>
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involve its U.S. office in the offer or sale of Instruments in bearer form.
Terms used in this paragraph have the meanings given to them by the U.S.
Internal Revenue Code and regulations thereunder, including the C Rules.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Offering
Memorandum (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or 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; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the sixth sentence of Section 7(c), the fees and
disbursements of counsel chosen by Merrill Lynch), 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 that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser through the Representative expressly for use in the Offering
Memorandum (or any amendment or supplement thereto) provided, further, that this
indemnity agreement shall not inure to the benefit of any Initial Purchaser (or
any controlling person thereof) who failed to deliver an Offering Memoran-
<PAGE>
-25-
dum (as then amended or supplemented) on or prior to the Closing Time to the
person asserting any loss, claim, damage or expense caused by any misstatement
or omission or alleged misstatement or omission, if such misstatement or
omission or alleged misstatement or omission was cured in such Offering
Memorandum (as so amended or supplemented), so long as the Offering Memorandum
(as so amended or supplemented) was provided by the Company to such Initial
Purchaser on or prior to the Closing Time.
(b) Indemnification of Company. Each Initial Purchaser severally
agrees to indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 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 Offering Memorandum (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Initial Purchaser through the
Representative expressly for use in the Offering Memorandum (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. 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 hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 7(a)
above, counsel to the indemnified parties shall be selected by Merrill Lynch,
and, in the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying parties be liable for fees and expenses of
<PAGE>
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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. No indemnifying party shall,
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 7 or Section 8 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not be liable for any settlement of the nature
contemplated by Section 7(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for in
Section 7 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative
<PAGE>
-27-
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total discount received by the Initial Purchasers, bear to
the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party 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 or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased by it and sold by it were offered
exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11 (f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
<PAGE>
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For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Initial Purchasers.
SECTION 10. Default by One or More of the Initial Purchasers. If one
or more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, 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 Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder,
each of the non-defaulting Initial Purchasers shall be obligated, severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Notes to be purchased hereunder, this
Agreement shall terminate without liability on the part of any non-
defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the
<PAGE>
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Closing Time for a period not exceeding seven days in order to effect any
required changes in the Offering Memorandum or in any other documents or
arrangements. As used herein, the term "Initial Purchaser" includes any person
substituted for an Initial Purchaser under this Section 10.
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 Initial
Purchasers shall be directed to the Representative at Sears Tower Building,
Suite 5500, Chicago, Illinois 60606, attention of: Parker Weil; notices to the
Company shall be directed to it at 700 State Street, Racine, Wisconsin 53404,
Attention: Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation. other than the
Initial Purchasers and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 7 and 8
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Company 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 Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. ALL
REFERENCES TO TIME HEREIN ARE TO EASTERN STANDARD TIME.
SECTION 14. Effect of Heading. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
CASE CORPORATION
By: /s/ Peter Hong
-------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Parker A. Weil
------------------------------------
Authorized Signatory
For itself and as Representative of the other Initial Purchasers named in
Schedule A hereto.
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company in accordance with its terms.
Very truly yours,
CASE CORPORATION
By:
-------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ ????????????
----------------------------------------
Authorized Signatory
For itself and as Representative of the other Initial Purchasers named in
Schedule A hereto.
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Principal Amount
of Securities
Name of Initial Purchaser to be Purchased
- ------------------------- ----------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith Incorporated $165,000,000
Chase Securities Inc. 33,750,000
Credit Suisse First Boston Corporation 33,750,000
NationsBanc Montgomery Securities LLC 33,750,000
Salomon Smith Barney Inc. 33,750,000
------------
Total:............. $300,000,000
</TABLE>
<PAGE>
SCHEDULE B
PRICE INFORMATION
1. The initial offering price to investors of the Securities shall
be 99.626% of the principal amount thereof plus accrued interest, if any, from
the date of issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 99.026% of the principal amount thereof plus accrued
interest, if any, from the date of issuance.
3. The interest rate on the Securities shall be 6.25% per annum.
<PAGE>
EXHIBIT 4(b)
CASE CORPORATION
CONSENT OF DIRECTORS
--------------------
The undersigned, being all of the members of the Board of Directors of Case
Corporation (the "Corporation"), a Delaware corporation, do hereby consent to
the adoption of, and do hereby adopt, the following resolutions in accordance
with Section 141(f) of the General Corporation Law of the State of Delaware:
RESOLVED that the Corporation is hereby authorized: (a) to effect
public and/or private offering(s) of debt securities of the
Corporation in an aggregate principal amount resulting in gross
proceeds to the Corporation of up to $500,000,000, on terms
established in accordance with these resolutions, which debt
securities may be denominated in foreign currencies or foreign
currency units or issued at original issue discount and, to the extent
issued at original issue discount or denominated in, purchased for or
payable in foreign currencies or foreign currency units, shall be that
principal amount as may result in the initial offering prices to the
public aggregating up to $500,000,000 (determined in the case of
foreign currencies or foreign currency units by reference to the
equivalent in United States dollars at the time of offering); (b) to
issue one or more series of Debentures, Notes and other evidences of
indebtedness to evidence the indebtedness authorized by or pursuant to
these resolutions having terms established in accordance with these
resolutions (and all Debentures, Notes and other evidences of
indebtedness which shall actually be issued by the Corporation
pursuant to such authorization are herein collectively called the
"Debt Securities") pursuant to (1) the existing indenture between the
Corporation and The Bank of New York, dated as of July
<PAGE>
31, 1995 (the "Existing Indenture"), (2) a supplement to the Existing
Indenture or (3) a new indenture and fiscal and paying agency
agreement(s) as described in clause (c) below; and (c) to enter into a
supplement to the Existing Indenture and/or to enter into a new
indenture and fiscal and paying agency agreement(s) governing the Debt
Securities and the Exchange Securities (as defined below) (and any
supplement thereto), if necessary or desirable, having the terms
established in accordance with these resolutions (the Existing
Indenture (and any supplement thereto) and any such new indenture and
fiscal and paying agency agreement(s) (and any supplement thereto)
governing the Debt Securities and Exchange Securities, if necessary or
desirable, into which the Corporation shall actually enter are herein
collectively called the "Indenture");
FURTHER RESOLVED that any two of Jean-Pierre Rosso, the Chairman
and Chief Executive Officer of the Corporation, Theodore R. French,
the President, Financial Services, and Chief Financial Officer of the
Corporation, Peter Hong, the Vice President and Treasurer of the
Corporation, and Robert A. Wegner, a Vice President of the Corporation
(each of such officers being an "Authorized Officer"), are hereby
authorized to determine: (a) the terms of any supplement to the
Existing Indenture and the terms of any new indenture and fiscal and
paying agency agreement(s) governing the Debt Securities and the
Exchange Securities (and any supplement thereto), if necessary or
desirable, and the bank or trust company which shall serve as trustee
under any such new Indenture; (b) the entity which shall serve as
paying agent under any such Indenture; (c) the terms of each series of
Debt Securities to be issued by the Corporation under the Indenture
(including but not limited to the aggregate principal amount of debt
to be represented by those Debt Securities, the rate at which interest
shall accrue on those Debt Securities (including but not limited to
any default rate or, if Debt Securities are issued with original issue
discount, the rate of accretion thereon), the time(s) at which
payment(s) of principal shall become due on those Debt
-2-
<PAGE>
Securities and the amount of each such payment, the dates on which
interest on the Debt Securities is to be paid, the extent of the
Corporation's right to make prepayments of amounts owed on those Debt
Securities and the amount of the premium (if any) which may be payable
in connection with any such prepayment, or to extend the maturity
thereof; (d) whether the Corporation shall enter into any supplement
to the Indenture (including but not limited to any supplement
establishing the terms of any series of Debt Securities) and the terms
of any such supplement; (e) the price at which the Debt Securities
shall be sold; (f) if other than United States dollars, any currency
or currency unit in which the securities are to be denominated, or
which is to be received in payment or in which principal or interest,
if any, is to be payable; (g) all other terms governing the sale of
the Debt Securities (including whether and to what extent the Debt
Securities shall be sold under firm commitment underwriting
arrangements, sold directly to investment bankers for subsequent
public sale or private resale pursuant to Rule 144A, sold pursuant to
best efforts arrangements, sold in private placement, sold through
agents, sold in the U.S. market or sold in the Euromarket or any other
overseas securities market); (h) in connection with any private
placement to investment bankers (the "Initial Purchasers") providing
for resales pursuant to Rule 144A (a "144A Sale") under the Securities
Act of 1933, as amended (the "Securities Act"), the Initial Purchasers
to be utilized, the purchase discount and other fees applicable to
such transaction, the indemnification and contribution arrangements to
be made by the Corporation in connection with such sale to the Initial
Purchasers and all other terms governing such private placement; (i)
in connection with any firm commitment underwriting, the underwriters
to be utilized, the underwriting discount and other fees applicable to
such underwriting, the indemnification and contribution arrangements
to be made by the Corporation in connection with such underwriting and
all other terms governing such underwriting; (j) in connection with
any medium term note program, the agents to be utilized, the agents'
discounts or commissions, the indemnification and contribution
arrangements to be made by the Corporation
-3-
<PAGE>
in connection with such program and all other terms governing such
program; (k) in connection with a 144A Sale, the terms of one or more
exchange offer agreements (including determining the entity that will
serve as exchange agent) and/or registration rights agreements
providing for the exchange for the privately placed Debt Securities of
publicly-registered Debt Securities (the "Exchange Securities")
substantially similar to such securities and/or for the registration
of the Exchange Securities under the Securities Act; (l) the terms
upon which Debt Securities and/or Exchange Securities may be
registered, qualified or otherwise cleared under Federal and state
securities laws; (m) whether Debt Securities shall be senior or
subordinated to other debt of the Corporation; (n) the exchange or
exchanges (or PORTAL) (if any) on which Debt Securities and/or
Exchange Securities shall be listed and the terms of any such listing;
(o) whether the Debt Securities and the Exchange Securities are to be
in definitive or book entry form and, if the latter, the depository
with respect to Debt Securities and Exchange Securities; and (p) any
other actions which the Corporation may take relating to Debt
Securities or Exchange Securities;
FURTHER RESOLVED that the yield to maturity of any issue of Debt
Securities authorized by any two of the Authorized Officers shall (i)
in the case of Debt Securities having a fixed interest rate, not
exceed 350 basis points above the yield to maturity on debt issued by
the United States Treasury having a comparable maturity (provided,
however, that in selecting debt of the United States Treasury with a
comparable maturity for purposes of making this determination, if more
than one issue of the United States Treasury has a comparable maturity
date, the issue whose coupon rate is nearest its yield to maturity
shall be the issue selected), or (ii) in the case of Debt Securities
having a floating interest rate, on the basis of the initial interest
rate established, not exceed 150 basis points above the LIBOR rate
maturing on periodic dates equal or substantially comparable to the
periods for which such rate is established; in making the foregoing
determinations pursuant to clause (i) or (ii) above, such Authorized
-4-
<PAGE>
Officers may rely upon quotations of debt issued by the United States
Treasury furnished to it by such persons as they may elect in their
sole judgment and all determinations made by such Authorized Officers
as to the terms of the Debt Securities being issued in accordance with
this resolution shall be final and conclusive in all respects and
binding on the Corporation;
FURTHER RESOLVED that any officer of the Corporation is hereby
authorized to cause the Corporation to take any action which such
officer shall deem to have been authorized in or pursuant to these
resolutions (which are herein collectively called "Implementing
Actions") including but not limited to: (a) the filing with the
Securities and Exchange Commission (the "Commission") of a
Registration Statement to register Debt Securities (including, without
limitation, any Exchange Securities constituting Debt Securities)
under the Securities Act, and such pre-effective and post-effective
amendments to such Registration Statement as such officer may deem
appropriate and, including after the effective date of the
Registration Statement, any supplements to the prospectus filed as
part of the Registration Statement which such officer may deem
necessary or appropriate; (b) the execution and filing with the
Commission of an application for the registration of Debt Securities
or Exchange Securities under the Securities Exchange Act of 1934, as
amended, if necessary or desirable, and all additional instruments and
documents which may be necessary or desirable to effectuate such
registration; (c) the execution and filing of a Listing Application
for the listing of Debt Securities or Exchange Securities on
-5-
<PAGE>
any stock exchange (or on PORTAL) on which such officer deems such
Debt Securities or Exchange Securities should be listed and any
related Indemnity Agreement or other documentation which such officer
may deem desirable and the appearance before the Committee on Stock
Lists (or other similar body) of any such exchange, and such other
acts as such officer may deem necessary to conform with the
requirements for listing Debt Securities or Exchange Securities on any
such exchange; (d) the qualification of any new indenture under the
Trust Indenture Act of 1939, as amended; (e) the execution of letters
of representation or other submissions to a depository with respect to
book entry securities; (f) the preparation of a private placement
memorandum or offering memorandum relating to the private placement of
any Debt Securities; and (g) the execution and filing with the
appropriate state agencies of all requisite instruments, records and
documents, including but not limited to applications, reports, surety
bonds, irrevocable consents and appointments of attorneys for service
of process and any other action which such officer shall deem
desirable to comply with the applicable laws of any state or other
jurisdiction of the United States of America governing the
qualification or registration for sale of all or part of the Debt
Securities or the Exchange Securities;
FURTHER RESOLVED that each officer and director of the
Corporation who may be required to execute such Registration
Statements or the Shelf Registration Statement (as defined below) or
any amendments thereto is hereby authorized to execute a Power of
Attorney appointing Theodore R. French, Richard S. Brennan and Peter
Hong, and each of them severally, his true and lawful attorney to
execute in his name, place and stead, in his capacity as director or
officer, or both as the case may be, such Registration Statements, and
any and all amendments and post-effective amendments thereto, and all
instruments necessary or incidental in connection therewith and to
file the same with the Commission. Each of such attorneys shall have
power to act hereunder with or without the other attorney and shall
have full power and authority to do and perform in the name and on
behalf of each of such directors or officers, or both as the
-6-
<PAGE>
case may be, every act whatsoever requisite or necessary to be done in
the premises, which each of such officers or directors, or both, might
or could do in person;
FURTHER RESOLVED that any officer of the Corporation is hereby
authorized to take any and all action which such officer may deem
necessary or appropriate in order to effect the registration or
qualification of part or all of the Debt Securities, Exchange
Securities and Shelf Securities (as defined below) for offer and sale
under the securities or Blue Sky laws of those states and other
jurisdictions in which such officer determines such registration or
qualification to be advisable, and in connection therewith to execute,
acknowledge, verify, deliver, file and publish all such applications,
reports, issuer's covenants, resolutions, consents to service of
process and other papers and instruments as may be required under such
laws, and to take any and all further action which such officer may
deem necessary or appropriate in order to maintain any such
registration or qualification for as long as such officer deems it to
be in the best interests of the Corporation; provided, however, that
if application is made in any state or jurisdiction that requires a
resolution of the Board of Directors as an exhibit to the application
and such state or jurisdiction does not recognize the form of
resolution immediately preceding, the Board of Directors hereby adopts
the form of any resolution required by such state or jurisdiction, if
such officer is of the opinion that the adoption of such resolution is
necessary or advisable and evidences such opinion by instructing the
Secretary of the Corporation to attach as an appendix to these
resolutions a copy of such resolution, which shall thereupon be deemed
to have been adopted by the Board of Directors with the same force and
effect as if presented in such form for the approval of the Board of
Directors, and the Secretary of the Corporation is empowered and
authorized to certify to any such state or jurisdiction that any such
form of resolution has been adopted by this resolution; and provided,
further, that the following resolution is hereby adopted with respect
to those jurisdictions which have approved its use:
-7-
<PAGE>
"RESOLVED that it is desirable and in the best interest of the
Corporation that its securities be qualified or registered for
sale in various states; that the President or any Vice President
and the Secretary or an Assistant Secretary hereby are
authorized to determine the states in which appropriate action
shall be taken to qualify or register for sale all or such part
of the securities of the Corporation as said officers may deem
advisable; that said officers are hereby authorized to perform
on behalf of the Corporation any and all such acts as they may
deem necessary or advisable in order to comply with the
applicable laws of any such states, and in connection therewith
to execute and file all requisite papers and documents,
including, but not limited to, applications, reports, surety
bonds, irrevocable consents and appointments of attorneys for
service of process; and the execution by such officers of any
such paper or document or the doing by them of any act in
connection with the foregoing matters shall conclusively
establish their authority therefor from the Corporation and the
approval and ratification by the Corporation of the papers and
documents so executed and the action so taken;"
FURTHER RESOLVED that any one Authorized Officer or the General
Counsel and Secretary of the Corporation is hereby authorized to
execute and deliver on behalf of the Corporation any agreement, Debt
Securities, Exchange Securities, Registration Statement, other
governmental filings or other documents of any kind which such officer
deems necessary or desirable in connection with any Implementing
Action, including but not limited to: (a) any new indenture (and any
supplement thereto); (b) any supplement to the Existing Indenture; (c)
any fiscal and paying agency agreement(s); (d) the Debt Securities
(the execution of which may be by means of facsimile signature); (e)
the Exchange Securities (the execution of which may be by means of
facsimile signature); (f) any Purchase Agreement, Underwriting
Agreement and any related pricing agreement, delayed delivery
agreement or other documentation on substantially the terms approved
-8-
<PAGE>
by any two Authorized Officers as provided in the foregoing
resolutions; (g) any registration rights agreement or other exchange
offer agreement on substantially the terms approved by any two
Authorized Officers as provided in the foregoing resolutions; and (h)
any Distribution Agreement and any related Terms Agreement or other
documentation on substantially the terms approved by any two
Authorized Officers as provided in the foregoing resolutions. Any
agreement or other document which shall be executed and delivered on
behalf of the Corporation by any one Authorized Officer or the General
Counsel and Secretary of the Corporation relating in any way to any
action which is authorized in or could be authorized pursuant to these
resolutions constitutes conclusive evidence that such execution and
delivery was authorized in or pursuant to these resolutions and upon
such execution and delivery, such agreement or document shall become
binding upon the Corporation in accordance with its terms;
FURTHER RESOLVED that this Board of Directors hereby adopts any
additional resolutions which may be requested by any governmental
authority, stock exchange or any other person which any one Authorized
Officer or the General Counsel and Secretary believes necessary or
desirable to accomplish any Implementing Action. The Secretary or any
Assistant Secretary of the Corporation is hereby authorized to certify
that any such resolution has been duly adopted by the Board of
Directors of the Corporation;
FURTHER RESOLVED that any one Authorized Officer is hereby
authorized to cause the Corporation to take any action which such
officer shall deem necessary or desirable to (a) file with the
Commission a Registration Statement (such Registration Statement,
being in addition to any other Registration Statement referred to in
these resolutions, is referred to as the "Shelf Registration
Statement") to register under the Securities Act up to $400,000,000
aggregate principal amount of debt securities of the Corporation (the
"Shelf Securities") (which debt securities may be, if so determined by
such officer, denominated in foreign currencies or foreign
-9-
<PAGE>
currency units or issued at original issue discount and, to the extent
issued at original issue discount or denominated in, purchased for or
payable in foreign currencies or foreign currency units, shall be that
principal amount as may result in the initial offering prices to the
public aggregating up to $400,000,000 (determined in the case of
foreign currencies or foreign currency units by reference to the
equivalent in United States dollars at the time of offering)), and
such pre-effective and post-effective amendments to such Shelf
Registration Statement as such officer may deem appropriate and,
including after the effective date of the Shelf Registration
Statement, any supplements to the prospectus filed as part of the
Shelf Registration Statement which such officer may deem necessary or
appropriate; (b) enter into a new indenture and fiscal and paying
agency agreement(s) governing the Shelf Securities (and any supplement
thereto), if necessary or desirable, and cause such new indenture to
be qualified under the Trust Indenture Act of 1939, as amended; and
(c) execute and file with the appropriate state agencies all requisite
instruments, records and documents, including but not limited to
applications, reports, surety bonds, irrevocable consents and
appointments of attorneys for service of process and to take any other
action which such officer shall deem desirable to comply with the
applicable laws of any state or other jurisdiction of the United
States of America governing the qualification or registration for sale
of all or part of the Shelf Securities; and
FURTHER RESOLVED that the $500,000,000 authorization contained in
these resolutions with respect to the issuance and sale of Debt
Securities and the $400,000,000 authorization contained in these
resolutions with respect to the Shelf Registration Statement shall be
separate from and in addition to the dollar amount of any
authorization to issue notes, debentures or other debt securities of
the Corporation contained in resolutions previously adopted by this
Board of Directors and currently in effect; and the authorization
relating to the Shelf Securities does not include an authorization to
issue and sell such Shelf Securities.
-10-
<PAGE>
The Secretary or any Assistant Secretary of the Corporation is hereby
directed to file this written Consent with the minutes of the proceedings of
this Board of Directors.
Dated as of November 24, 1998.
/s/ PEI-YUAN CHIA /s/ KATHERINE M. HUDSON
- ------------------------------------ ------------------------------------
Pei-yuan Chia Katherine M. Hudson
/s/ RONALD E. GOLDSBERRY /s/ GERALD ROSENFELD
- ------------------------------------ ------------------------------------
Ronald E. Goldsberry Gerald Rosenfeld
/s/ JEFFERY T. GRADE /s/ JEAN-PIERRE ROSSO
- ------------------------------------ ------------------------------------
Jeffery T. Grade Jean-Pierre Rosso
/s/ THOMAS R. HODGSON /s/ THEODORE R. TETZLAFF
- ------------------------------------ ------------------------------------
Thomas R. Hodgson Theodore R. Tetzlaff
Consent\Case Corp. Debt Offering
-11-
<PAGE>
EXHIBIT 4(c)
CASE CORPORATION
ACTIONS OF THE AUTHORIZED OFFICERS
Pursuant to the authority granted by the Board of Directors of Case
Corporation (the "Company") in its November 24, 1998 resolutions, the
undersigned agree as follows:
1. The Company shall issue $300,000,000 aggregate principal amount
of the Company's 6 1/4% Notes Due December 1, 2003, Series A (the "Series A
Securities").
2. The Company shall issue and sell the Series A Securities to
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase Securities Inc.,
Credit Suisse First Boston Corporation, NationsBanc Montgomery Securities
LLC and Salomon Smith Barney Inc. (collectively, the "Initial Purchasers")
pursuant to a Purchase Agreement, dated December 2, 1998, among the Company
and the Initial Purchasers (the "Purchase Agreement"), upon the terms and
conditions set forth therein, to be issued under and in accordance with an
Indenture, dated as of July 31, 1995, between the Company and The Bank of
New York, as Trustee ("Trustee"), relating to the Company's securities and
other obligations (the "Indenture").
3. The Company shall enter into a Registration Rights Agreement with
the Initial Purchasers (the "Registration Rights Agreement"), which
requires the Company, among other things, to conduct an exchange offer
whereby it will offer to exchange all Series A Securities for a new issue
of Securities (the "Series B Securities" and together with the Series A
Securities, the "Securities") that are identical in all material respects
with the Series A Securities except that the Series B Securities are fully
registered with the Securities and Exchange Commission.
4. In addition to the other terms provided in the Indenture with
respect to securities issued thereunder, all as more particularly described
in the Purchase Agreement, the Offering Memorandum relating to the
Securities and the form of
<PAGE>
Security referred to below, the Securities shall contain the following
terms:
(a) The Securities shall be entitled "6 1/4% Notes Due December 1,
2003";
(b) Subject to the terms of the Indenture, the Securities shall be
initially limited in aggregate principal amount to $300,000,000;
however, the Company may "reopen" the Securities series and issue
additional Securities;
(c) Interest shall be payable to the persons in whose names the
Securities are registered at the close of business on the
applicable Regular Record Date (as defined below);
(d) The principal of the Securities is payable on December 1, 2003;
(e) The Securities shall bear interest at the rate of 6 1/4% per
annum beginning December 7, 1998. Subject to the terms of the
Indenture, interest on the Securities will be payable semi-
annually on the 1st day of December and June of each year (each
an "Interest Payment Date"), commencing on June 1, 1999. Interest
shall be paid to persons in whose names the Securities are
registered on the November 15 or May 15 preceding the Interest
Payment Date (each a "Regular Record Date");
(f) Payment of principal, and premium, if any, and interest on the
Securities will be made at the office or agency of the Company
maintained for that purpose in New York, New York; provided,
however, that at the option of the Company payment of interest
may be made by check mailed to the address of the person entitled
thereto as such address appears in the security register;
(g) The Securities will not be redeemable prior to maturity;
<PAGE>
(h) The Securities shall not provide for a sinking fund;
(i) The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple
thereof;
(j) The payment of the principal of, and any premium and interest on,
the Securities shall be made 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;
(k) The payment of principal of, and any premium and interest on, the
Securities shall not be determined with reference to an index or
formula (except as described in the form of Securities attached
hereto as Exhibit A with respect to the payment of additional
interest as described therein);
(l) There shall be no optional currency or currency unit in which the
payment of principal of, and any premium and interest on, the
Securities shall be payable;
(m) Both Sections 13.2 and 13.3 of the Indenture shall apply to the
Securities;
(n) Securities initially purchased by or transferred to qualified
institutional buyers ("QIBs") as defined in and in reliance on
Rule 144A under the Securities Act of 1933 ("Rule 144A") will be
in registered book-entry form and will be issued initially in the
form of one or more permanent global Securities in fully
registered form without interest coupons, substantially in the
form set forth in Exhibit A, not including the Regulation S
legend (the "U.S. Global Security") deposited with the Trustee,
as custodian for The Depository Trust Company (the "Depositary"),
duly executed by the Company and authenticated by the Trustee as
<PAGE>
provided in the Indenture. The aggregate principal amount of the
U.S. Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as provided in the
Indenture.
Securities (i) originally purchased by or transferred to
institutional "accredited investors" (as defined in Rule
501(a)(l),(2),(3) and (7) under the Securities Act)
("Institutional Accredited Investors") who are not QIBs or (ii)
held by QIBs who elect to take physical delivery of their
certificates instead of holding their interest through the U.S.
Global Security (collectively, the "Non-Global Purchasers"), will
be in registered form without interest coupons (the "Certificated
Securities"). Upon the transfer of Certificated Securities which
were initially issued to a Non-Global Purchaser to a QIB, such
Certificated Securities will, unless the transferee requests
otherwise or the U.S. Global Security has previously been
exchanged in whole for Certificated Securities, be exchanged for
an interest in the U.S. Global Security. The Certificated
Securities will be substantially in the form of Exhibit A, but
will not contain the legend restricting transfers as required by
the Depositary as described in the first two paragraphs of
Exhibit A (the "DTC Legend").
Securities offered and sold in reliance on Regulation S under the
Securities Act ("Regulation S") shall be issued initially in the
form of a global security certificate in fully registered form
without interest coupons, substantially in the form set forth in
Exhibit A, including the Regulation S legend (the "Offshore
Global Security" and, together with the U.S. Global Security, the
"Global Securities"). The Offshore Global Security will be
deposited with the Trustee as custodian for the Depositary and
will be registered in the name
<PAGE>
of the Depositary until the termination of the "40-day restricted
period" (as defined in Rule 903 of Regulation S) with respect to
the offer and sale of the Securities. Prior to the termination of
the 40-day restricted period, transfers of beneficial interests
in the Offshore Global Security can only be effected through the
Depositary, upon receipt by the Trustee and the Depositary of a
certificate substantially in the form of Appendix III to the
Security.
(o) The principal amount of the Securities shall be payable upon
declaration of acceleration pursuant to Section 5.2 of the
Indenture;
(p) The other terms and conditions of the Securities shall be
substantially as set forth in the Indenture and in the Offering
Memorandum relating to the Securities and as set forth on the
form of Securities attached hereto as Exhibit A.
5. The form of the Global Securities shall be substantially as attached
hereto as Exhibit A. The form of the Certificated Securities shall be
substantially the same as Exhibit A except that there will not be a DTC Legend.
6. The price at which the Series A Securities shall be sold by the
Company to the Initial Purchasers pursuant to the Purchase Agreement shall be
99.026% of the principal amount thereof, plus accrued interest from December 7,
1998 to the time of delivery.
7. The Series A Securities will be offered and sold only to QIB's,
Institutional Accredited Investors and pursuant to offers and sales to non-U.S.
persons that occur outside the U.S. within the meaning of Regulation S by the
Initial Purchasers initially at 99.626% of the principal amount thereof, plus
accrued interest from December 7, 1998 to the time of delivery.
8. The execution and delivery of the Purchase Agreement, dated December
2, 1998 (and substantially in the form attached hereto as Exhibit B), is hereby
approved.
<PAGE>
9. The execution and delivery of the Registration Rights Agreement, dated
December 7, 1998 (and substantially in the form attached hereto as Exhibit C),
is hereby approved.
10. Any officer of this Company specified in the first paragraph of
Section 3.3 of the Indenture is hereby authorized and empowered to execute the
Securities of this Company in the form he deems appropriate, and to deliver such
Securities to the Trustee with a written order directing the Trustee to have the
Securities authenticated and delivered to such persons as such officer
designates.
11. The Bank of New York is hereby designated and appointed as Paying
Agent and Securities Registrar with respect to the Securities.
<PAGE>
IN WITNESS WHEREOF, on behalf of the Company, the undersigned Authorized
Officers of the Company have executed this Officers' Certificate as of this 2nd
day of December, 1998.
CASE CORPORATION
By: /s/ Theodore R. French
----------------------
Name: Theodore R. French
Title: President, Financial
Services, and Chief
Financial Officer
By: /s/ Peter Hong
----------------------
Name: Peter Hong
Title: Vice President and
Treasurer
<PAGE>
FORM OF
CASE CORPORATION
ACTIONS OF THE AUTHORIZED OFFICERS
Pursuant to the authority granted by the Board of Directors of Case
Corporation (the "Company") in its November 24, 1998 resolutions and by the
Actions of the Authorized Officers of Case Corporation dated December 2, 1998
(the "December Actions"), the undersigned agree as follows:
1. The Company shall issue up to $300,000,000 aggregate principal
amount of the Company's 6 1/4% Notes Due December 1, 2003, Series B (the
"Series B Securities") under and in accordance with the Indenture, dated as
of July 31, 1995, between the Company and The Bank of New York, as Trustee
("Trustee"), relating to the Company's securities and other obligations
(the "Indenture").
2. The Company shall offer to exchange (the "Exchange Offer") the
Series B Securities to all registered holders of its 6 1/4% Notes due
December 1, 2003, Series A (the "Series A Securities") for an identical
principal amount of Series A Securities, of which $300,000,000 aggregate
principal amount are outstanding.
3. The Company shall conduct the Exchange Offer in accordance with
the Registration Rights Agreement (the "Registration Rights Agreement"),
dated as of December 7, 1998, between the Company and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Chase Securities Inc., Credit Suisse
First Boston Corporation, NationsBanc Montgomery Securities LLC and Salomon
Smith Barney Inc. and the Prospectus relating to the Series B Securities,
dated ___________, 1999.
4. The Company shall file with the Securities and Exchange Commission
a registration statement on Form S-4 (the "Exchange Offer Registration
Statement") relating to the Series B Securities and the Exchange Offer and
shall perform all of its obligations relating to the Exchange Offer
Registration Statement set forth in the Registration Rights Agreement.
5. The Series B Securities shall have the terms of the "Securities"
described in the December Actions and as described in the Prospectus
relating to the Series B Securities; provided, however, that:
(a) The Series B Securities shall bear interest, and interest thereon
shall be payable, from the last
<PAGE>
Interest Payment Date (as defined in the December Actions) to
which interest has been paid or duly provided for on the Series A
Securities preceding the date of issuance of the Series B
Securities, or, if no interest has been paid or duly provided for
on the Series A Securities, from December 7, 1998.
(b) Series B Securities will be in registered book-entry form and
will be issued initially in the form of one or more permanent
global securities in fully registered form without interest
coupons, substantially in the form set forth in Exhibit A (the
"Global Security"), deposited with the Trustee, as custodian for
The Depository Trust Company (the "Depository"), duly executed by
the Company and authenticated by the Trustee as provided in the
Indenture. The aggregate principal amount of the Global Security
may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the
Depositary or its nominee, as provided in the Indenture.
(c) Series B Securities of holders who elect to take physical
delivery of their certificate instead of holding their interest
through a Global Security will be in registered form without
interest coupons, substantially in the form of Exhibit A but will
not contain the legend restricting transfers as required by the
Depository as described in the first two paragraphs of Exhibit A.
6. The Bank of New York is hereby designated and appointed as the exchange
agent with respect to the Exchange Offer and the execution and delivery of the
Exchange Agent Agreement between the Company and the Trustee (and substantially
in the form attached hereto as Exhibit B) is hereby approved.
<PAGE>
IN WITNESS WHEREOF, on behalf of the Company, the undersigned Authorized
Officers of the Company have executed this Officers' Certificate as of this ___
day of April, 1998.
CASE CORPORATION
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
<PAGE>
Exhibit 4(d)
FORM OF
CASE CORPORATION
6 1/4% Note Due December 1, 2003, Series B
No. 1 $200,000,000
CUSIP No.
-------------
This Security is a Book-Entry Security in a global form within the meaning
of the Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of a Depository. This Global Security is exchangeable
for Securities registered in the name of a Person other than the Depository or
its nominee only in the limited circumstances described either in the Indenture
or herein, and no transfer of this Security (other than a transfer of this
Security 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) may be registered except in such limited circumstances.
Unless this Security is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any Security issued
upon registration of transfer of, or in exchange for, or in lieu of, this
Security is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), 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.
<PAGE>
CASE CORPORATION
CASE CORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., as nominee for DTC, or
registered assigns, the principal sum of Two Hundred Million Dollars
($200,000,000) on December 1, 2003, and to pay interest thereon from the then
most recent Interest Payment Date to which interest has been paid or duly
provided for on the Company's 6 1/4% Notes due December 1, 2003, Series A (the
"Series A Notes") or, if no interest has been paid or duly provided for on the
Series A Notes, from December 7, 1998, semi-annually on December 1 and June 1 in
each year, commencing on the first such date after the issuance hereof, at the
rate of 6 1/4% per annum, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the November 15 or May 15 (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 Security (or one or more Predecessor Securities) 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 Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in New York, 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 at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto at such address as shall appear in the Security Register.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to herein by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
-2-
<PAGE>
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 31, 1995 (herein called the
"Indenture"), between the Company and The Bank of New York, 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, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $300,000,000.
The Securities of this series will not be redeemable prior to maturity.
The Securities of this series shall not provide for a sinking fund.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains applicable provisions for defeasance at any time of
the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
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 principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
-3-
<PAGE>
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
So long as the Securities are eligible for book-entry settlement with the
Depository (the "Global Securities"), or unless otherwise required by law, the
Global Securities initially shall (i) be registered in the name of the
Depository or the nominee of such Depository and (ii) be delivered to the
Trustee as custodian for such Depository. Members of, or participants in, the
Depository ("Agent Members") shall have no rights under the Indenture with
respect to any Global Security held on their behalf by the Depository, or the
Trustee as its custodian, or under the Global Securities, and the Depository may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Securities for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any Agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Security.
Transfers of the Global Securities shall be limited to transfers in whole,
but, subject to the immediately succeeding sentence, not in part, to the
Depository, its successors or their respective nominees. Interests of beneficial
owners in the Global Securities may be transferred or exchanged for Certificated
Securities in accordance with the rules and procedures of the Depository and the
provisions below. In addition, Securities in registered form (the "Certificated
Securities") shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Global Securities if (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for the Global
Securities or the Depository ceases to be a "Clearing Agency" registered under
the Securities Exchange Act of 1934, as amended, and a successor Depository is
not appointed by the Company within 90 days or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from
the Depository to issue Certificated Securities.
In connection with any transfer or exchange of a portion of the beneficial
interest in a Global Security to beneficial owners as described above, the
Registrar shall (if one or more Certificated Securities are to be issued)
reflect on its books and records the date and a decrease in the principal amount
of the Global Security in an amount equal to the principal amount of the
-4-
<PAGE>
beneficial interest in the Global Security to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Certificated Securities of like tenor and amount.
In connection with the transfer of the beneficial interests in an entire
Global Security to beneficial owners as described above, the Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Security, an equal aggregate principal amount of
Certificated Securities of authorized denominations.
The Registrar shall retain copies of all letters, notices and other written
communications received. The Company shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time during the Registrar's normal business hours upon the giving of
reasonable written notice to the Registrar. In connection with any transfer of
the Securities, the Trustee, the Registrar and the Company shall be entitled to
receive, shall be under no duty to inquire into, may conclusively presume the
correctness of, and shall be fully protected in relying upon the certificates,
opinions and other information referred to herein (or in the forms provided
herein, attached hereto or to the Securities, or otherwise) received from any
holder and any transferee to receive such Security and any other facts and
circumstances related to such transfer.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
-5-
<PAGE>
No service charge shall 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 Security 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 Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the conflict of laws
provisions thereof.
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: May ___, 1999
(seal) CASE CORPORATION
By:_________________________
Name: Peter Hong
Title: Vice President and
Treasurer
Attest:
By:________________________________
Name: Kevin J. Hallagan
Its: Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned
Indenture.
Dated: May ______, 1999
By:________________________________
Authorized Signatory
-7-
<PAGE>
Exhibit 4(e)
================================================================================
Registration Rights Agreement
Dated As of December 7, 1998
among
Case Corporation
and
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
NationsBanc Montgomery Securities LLC
Salomon Smith Barney Inc.
================================================================================
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into this 7th day of December, 1998, among Case Corporation, a Delaware
corporation (the "Company"), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Chase Securities Inc., Credit Suisse First Boston Corporation,
NationsBanc Montgomery Securities LLC and Salomon Smith Barney Inc.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated December
2, 1998, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for, among other things, the sale by the Company to
the Initial Purchasers of an aggregate of $300 million aggregate principal
amount of the Company's 6.25% Notes due December 1, 2003 (the "Securities"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan in the City of
New York.
<PAGE>
-2-
"Effectiveness Date" shall mean the date that the Exchange Offer
Registration Statement is declared effective under the 1933 Act.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean the 6.25% Notes due December 1, 2003
issued by the Company under the Indenture containing terms identical to the
Securities in all material respects (except for references to certain
interest rate provisions, restrictions on transfers and restrictive
legends), to be offered to Holders of Securities in exchange for
Registrable Securities pursuant to the Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of July 31, 1995, between the Company and The Bank of New York, as
trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
forth in the preamble.
"Issue Date" shall mean the date on which the Securities are
originally issued under the Indenture.
<PAGE>
-3-
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided, that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company and other obligors on
the Securities or any Affiliate (as defined in the Indenture) of the
Company shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount.
"Participating Broker-Dealer" shall mean Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Chase Securities Inc., Credit Suisse First Boston
Corporation, NationsBanc Montgomery Securities LLC and Salomon Smith Barney
Inc. and any other broker-dealer which makes a market in the Securities and
exchanges Registrable Securities in the Exchange Offer for Exchange
Securities.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities
have been sold to the public pursuant to Rule 144 (or any similar provision
then in force, but not Rule 144A) under the 1933 Act, (iii) such Securities
shall have ceased to be outstanding or (iv) the Securities have been
exchanged for Exchange Securities upon consummation of the Exchange Offer
and are thereafter freely tradable by the holder thereof (except in the
case of Securities purchased from the Company and continued to be held by
the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limita-
<PAGE>
-4-
tion: (i) all SEC, stock exchange or National Association of Securities
Dealers, Inc. (the "NASD") registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or
blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities and any filings with the NASD), (iii)
all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and
expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (vii) the fees and expenses of
the Trustee, and any escrow agent or custodian, (viii) the reasonable fees
and disbursements of Cahill, Gordon &Reindel, special counsel representing
the Holders of Registrable Securities and (ix) any fees and disbursements
of the underwriters customarily required to be paid by issuers or sellers
of securities and the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including post-
effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
<PAGE>
-5-
"Shelf Registration Statement" shall mean a shelf registration
statement of the Company pursuant to the provisions of Section 2.2 of this
Agreement which covers all of the Registrable Securities on an appropriate
form under Rule 415 under the 1933 Act, or any similar rule that may be
adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 1933 Act.
2.1. Exchange Offer. The Company shall, for the benefit of the Holders,
at the Company's cost, (A) prepare and, not later than 135 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement under
the 1933 Act with respect to a proposed Exchange Offer and the issuance and
delivery to the Holders, in exchange for the Registrable Securities, of a like
principal amount of Exchange Securities, (B) use its reasonable efforts to cause
the Exchange Offer Registration Statement to be declared effective under the
1933 Act within 180 days of the Closing Date, (C) use its reasonable efforts to
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) use its reasonable efforts to cause the Exchange
Offer to be consummated not later than 45 days following the Effectiveness Date.
The Exchange Securities will be issued under the Indenture. Upon the
Effectiveness Date, the Company shall, within the agreed-upon time limits,
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) is not a broker-
dealer tendering Registrable Securities acquired directly from the Company for
its own account, (c) acquired the Exchange Securities in the ordinary course of
such Holder's business and (d) has no arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
<PAGE>
-6-
(b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer at the option of the Company or if required by
applicable law) (such period referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any
time prior to 5:00 p.m. (New York City Time), on the last business day of
the Exchange Period, by sending to the institution specified in the notice,
a telegram, telex, facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable Securities delivered
for exchange, and a statement that such Holder is withdrawing his election
to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the Company
shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities so accepted
for exchange in a principal amount equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security will accrue from the last date on which
interest was paid on the Registrable Securities surrendered in exchange therefor
or, if no interest has been paid on the Registrable Securities, from the Issue
Date. The Exchange Offer shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any ex-
<PAGE>
-7-
change by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer, (iii) that each Holder of
Registrable Securities exchanged in the Exchange Offer shall have made certain
customary representations, including representations that (a) such Holder is not
an affiliate of the Company within the meaning of Rule 405 under the 1933 Act,
(b) that such Holder is not a broker-dealer tendering Registrable Securities
acquired directly from the Company for its own account (unless it agrees to
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of Exchange Securities), (c) that all Exchange Securities to be
received by it shall be acquired in the ordinary course of its business and that
at the time of the consummation of the Exchange Offer it shall have no
arrangement or understanding with any person to participate in the distribution
(within the meaning of the 1933 Act) of the Exchange Securities, and (d) any
such other representations as may be reasonably necessary under applicable SEC
rules, regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental entity with respect to the Exchange Offer which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer. To the extent permitted by law, the
Company shall inform the Initial Purchasers of the names and addresses of the
Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
2.2. Shelf Registration. In the event that (i) any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC do not permit the Company to effect the Exchange Offer as contemplated by
Section 2.1 hereof, (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 180 days following the original issue
of the Registrable Securities or the Exchange Offer is not consummated within 45
days after the Effectiveness Date (provided that if the Exchange Offer
Registration Statement shall be declared effective after such 180-day period or
if the Exchange Offer shall be consummated after such 45-day period, then the
Company's obligations under this clause (ii) arising from failure of the
Exchange Offer Registration Statement to be declared effective within such 180-
day period or failure of the Exchange Offer to be consummated within such 45-day
period, respectively, shall terminate), (iii) upon the request of any Initial
Purchaser made within 90 days after consummation of the Exchange Offer with
respect to any Registrable Securities which it acquired directly from the
Company and, with respect to other Registrable Securities held by it, if such
Initial Purchaser is not permitted, in the reasonable opinion of counsel with a
national securities law reputation to such Initial Purchaser, pursuant to
applicable law or applicable interpretations of the Staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are freely
tradeable without restriction under the 1933 Act and applicable blue sky or
state securities laws or (iv) if a Holder is not permit-
<PAGE>
-8-
ted by applicable law to participate in the Exchange Offer based upon written
advice of counsel with a national securities law reputation to the effect that
such Holder may not be legally able to participate in the Exchange Offer or does
not receive Exchange Securities pursuant to the Exchange Offer which are fully
tradeable by the Holder without restriction under the 1933 Act and under
applicable blue sky or state securities laws, then in case of each of clauses
(i) through (iv) the Company shall, at its cost:
(a) No later than the later of (i) 180 days after the Issue Date and
(ii) 60 days after the obligation to file arises pursuant to this Section
2.2, file with the SEC, and thereafter shall use its reasonable efforts to
cause to be declared effective no later than 60 days after the date such
Shelf Registration Statement is filed, a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities by the Holders
from time to time in accordance with the methods of distribution elected by
the Majority Holders participating in the Shelf Registration and set forth
in such Shelf Registration Statement.
(b) Subject to Section 2.4(b), use its reasonable efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years (or one year in the case of a request solely by an Initial Purchaser)
from the date the Shelf Registration Statement is declared effective by the
SEC, or for such shorter period that will terminate when all Registrable
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or cease to be outstanding or
otherwise to be Registrable Securities.
(c) Notwithstanding any other provisions hereof, use its reasonable
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto, at the time each such registration statement or
amendment thereto becomes effective, and any Prospectus, as of the date
thereof, forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from time to
time) (each as of the date thereof), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements, in light of the circumstances under which they were
made, not misleading, provided that clauses (ii) and (iii) in this
paragraph shall not apply to any information provided by the Initial
Purchasers or any Holder.
<PAGE>
-9-
The Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, as required by Section 3(b) below, and to furnish to the
Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
The Company shall not be required to include any Registrable Securities of
a Holder in any Shelf Registration Statement pursuant to this Agreement unless
such Holder (i) fur-nishes to the Company, within 20 business days after receipt
by such Holder of a request therefor, such information as the Company may
reasonably request for use in connection with such Shelf Registration Statement
and (ii) agrees in writing to be bound by this Agreement, including the
indemnification provisions.
2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2 hereof. Except
as provided herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
2.4. Effectiveness. (a) The Company will be deemed not to have used its
reasonable efforts to cause the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if the Company voluntarily takes any
affirmative action that would, or omits to take any action which omission would,
result in any such Registration Statement not being declared effective or in the
holders of Registrable Securities covered thereby not being able to exchange or
offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless (i) such action is required by applicable law
or (ii) such action or omission is taken or made by the Company in good faith
and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Company complies with the requirements of Section 3(k) hereof, if
applicable.
(b) The Company may suspend the availability of the Shelf
Registration Statement and the use of any Prospectus which is a part thereof and
shall not be required to amend or supplement such Shelf Registration Statement
(i) for one period not to exceed 60 days in any six month period or (ii) for up
to four periods not to exceed an aggregate of 90 days in any 12 month period, if
such suspension is effected in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly complies
with the requirements of Section 3(k) hereof, if applicable.
<PAGE>
-10-
(c) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not
be deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
2.5. Interest. The Company agrees that in the event that either (a) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 135th calendar day following the Issue Date, (b) the Exchange Offer
Registration Statement has not been declared effective on or prior to the 180th
calendar day following the Issue Date, (c) the Exchange Offer is not consummated
on or prior to the 45th calendar day following the Effectivness Date or (d) a
Shelf Registration Statement is not filed on or prior to the deadline for such
filing pursuant to Section 2.2(a) or is not declared effective on or prior to
the 60th calendar day following the date of filing of the Shelf Registration
Statement (each such event referred to in clauses (a) through (d) above, a
"Registration Default"), the interest rate borne by the Securities shall be
increased ("Additional Interest") immediately upon occurrence of a Registration
Default by one-quarter of one percent (0.25%) per annum with respect to the
first 90-day period while one or more Registration Defaults is continuing, which
rate will increase by one-quarter of one percent (0.25%) at the beginning of
each subsequent 90-day period while one or more Registration Default is
continuing, until all Registration Defaults have been cured, provided that the
maximum aggregate increase in the interest rate will in no event exceed one-half
of one percent (0.50%) per annum, and provided further that Additional Interest
shall accrue only for those days that a Registration Default occurs and is
continuing. Such Additional Interest shall be calculated based on a year
consisting of 360 days comprised of twelve 30-day months. Following the cure of
all Registration Defaults the accrual of Additional Interest will cease and the
interest rate will revert to the original rate. Additional Interest shall not
be payable with respect to the Registration Defaults described in clauses (a),
(b) and (c) above for any period during which a Shelf Registration Statement is
effective and usable by the Holders.
If the Shelf Registration Statement is unusable by the Holders for any
reason, then the interest rate borne by the Securities will be increased by one-
quarter of one percent (0.25%) per annum of the principal amount of the
Securities for the first 90-day period (or portion thereof) that such Shelf
Registration Statement ceases to be usable, which rate shall be increased by an
additional one-quarter of one percent (0.25%) per annum of the principal amount
of the Securities at the beginning of each subsequent 90-day period, provided
that the maximum aggregate increase in the interest rate will in no event exceed
one-half of one percent (0.50%) per annum. Any amounts payable under this
paragraph shall also be deemed
<PAGE>
-11-
"Additional Interest" for purposes of this Agreement. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
the Securities will be reduced to the original interest rate if the Company is
otherwise in compliance with this Agreement at such time. Additional Interest
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee in writing within three business days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of Registrable Securities, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date to the record Holder of Securities entitled to
receive the interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.
Notwithstanding anything else contained herein, no Additional Interest
shall be payable in relation to the applicable Shelf Registration Statement or
the related prospectus if (i) such Additional Interest is payable solely as a
result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited or, if required by the
rules and regulations under the 1933 Act, quarterly unaudited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) for a period not to exceed an aggregate of 45 days
in any calendar year, other material events or developments with respect to the
Company that would need to be described in such Shelf Registration Statement or
the related prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such Shelf
Registration Statement and related prospectus to describe such events; provided,
however, that in no event shall the Company be required to disclose the business
purpose for such suspension if the Company determines in good faith that such
business purpose must remain confidential. Notwithstanding the foregoing, the
Company shall not be required to pay Additional Interest with respect to the
Securities to Holder if the failure arises from the Company's failure to file,
or cause to become effective, a Shelf Registration Statement within the time
periods specified in this Section 2 by reason of the failure of such Holder to
provide such information as (i) the Company may reasonably request, with
reasonable prior written notice, for use in the Shelf Registration Statement or
any prospectus included therein to the extent the Company reasonably determines
that such information is required to be included therein by applicable law, (ii)
the NASD or the Commission may request in connection with such Shelf
Registration Statement or (iii) is required to comply with the agreements of
such Holder as contained
<PAGE>
-12-
herein to the extent compliance thereof is necessary for the Shelf Registration
Statement to be declared effective.
3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement, within
the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall, in the case of a Shelf Registration, be available for the sale of
the Registrable Securities by the selling Holders thereof, (iii) shall, at
the time of effectiveness, comply as to form in all material respects with
the requirements of the applicable form and include or incorporate by
reference all financial statements required by the SEC to be filed
therewith or incorporated by reference therein, and (iv) shall comply in
all material respects with the requirements of Regulation S-T under the
Securities Act, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) subject to the limitations contained in the fourth paragraph of
Section 2.5, prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 or any similar provision then in effect under the 1933 Act and
comply with the provisions of the 1933 Act, the 1934 Act and the rules and
regulations thereunder applicable to them with respect to the disposition
of all Securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof described in this Agreement
(including sales by any Participating BrokerDealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method selected by the
Majority Holders participating in the Shelf Registration; (ii) furnish to
each Holder of Registrable Securities and to each underwriter of an
underwritten offering of Registrable Securities, if any, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such Holder
or underwriter may reasonably re-
<PAGE>
-13-
quest, including financial statements and schedules and, if the Holder so
requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject to the last
paragraph of this Section 3, hereby consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use its reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable each such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to (i) qualify as
a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Section
3(d), or (ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction where it is not then so
subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration or any Participating Broker-Dealer who has notified the
Company that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such notice in writing promptly (i)
when a Registration Statement has become effective and when any post-
effective amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or
for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) in
the case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to the offering cease to be
true and correct in all material respects, (v) of the happening of any
event or the discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes
<PAGE>
-14-
in such Registration Statement or Prospectus in order to make the
statements therein not misleading, (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities, as the case may be, for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose and (vii) of any determination by the Company that a post-
effective amendment to such Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer Registration Statement, (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution" which section shall be reasonably acceptable to
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") on
behalf of the Initial Purchasers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC
with respect to the potential "underwriter" status of any broker-dealer
that holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities and that will be
the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly disseminated
by the staff of the SEC or such positions or policies, in the reasonable
judgment of Merrill Lynch on behalf of the Initial Purchasers and its
counsel, represent the prevailing views of the staff of the SEC, including
a statement that any such broker-dealer who receives Exchange Securities
for Registrable Securities pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such Participating Broker-Dealer may
reasonably request, (iii) subject to the last paragraph of this Section 3,
hereby consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto, by any
person subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto, (iv) use their best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the 1933 Act for such period of time as such Persons must
comply with such requirements in order to resell the Exchange Securities
and (v) include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange
Offer (x) the following provision:
<PAGE>
-15-
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Securities, the broker-dealer
will not be deemed to admit that it is an underwriter within the meaning of
the 1933 Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers on behalf of the
Participating Broker-Dealers upon the effectiveness of the Exchange Offer
Registration Statement (i) an opinion of Mayer, Brown & Platt substantially
in the form attached hereto as Exhibit A and (ii) an officers' certificate
substantially in the form customarily delivered in a public offering of
debt securities;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment
letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities upon request, and each underwriter, if any, without
charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference and all
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least three business days
prior to the closing of any sale of Registrable Securities;
<PAGE>
-16-
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections
3(e)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof, use its reasonable
efforts to prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable
Securities or Participating Broker-Dealers, such Prospectus will not
contain at the time of such delivery any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or will remain so qualified;
(l) obtain a CUSIP number for all Exchange Securities not later than
the effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Securities in a form eligible
for deposit with the Depositary;
(m) (i) if not already qualified, cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and
(iii) execute, and use its reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including customary underwriting agreements) and take all other customary
and appropriate actions in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings as may be reasonably requested by
them (provided that such representations and warranties shall be
substantially similar to those contained in the Purchase Agreement);
(ii) obtain opinions of counsel to the Company and updates
thereof (which opinions (in form, scope and substance) and counsel
shall be reasonably satisfactory to the managing underwriters, if any,
and the Holders of a majority in
<PAGE>
-17-
principal amount of the Registrable Securities being sold) addressed
to each selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters (provided that
such opinions shall be substantially similar to those described in the
Purchase Agreement);
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, if any, and use reasonable efforts to have such letters
addressed to the selling Holders of Registrable Securities (to the
extent consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accountants), such letters to
be in customary form and covering matters of the type customarily
covered in "cold comfort" letters to underwriters in connection with
similar underwritten offerings and such other matters as reasonably
requested by such selling Holders and any underwriters;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall
be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth
in Section 4 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section or, at the request
of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the Registrable
Securities being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration
Statement (and each post-effective amendment thereto) and (ii) each closing
under any underwriting or similar agreement as and to the extent required
thereunder;
(o) in the case of a (i) Shelf Registration, or (ii) Prospectus
contained in an Exchange Offer pursuant to Section 2.1 which is required to
be delivered under the
<PAGE>
-18-
1933 Act by a Participating Broker-Dealer who seeks to sell Exchange
Securities, make available (at the office where normally kept and during
normal business hours) for inspection by representatives of the Holders of
the Registrable Securities and any such Participating Broker-Dealer, as the
case may be, and any underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any counsel or accountant retained by
such Holders, Participating Broker-Dealers or underwriters (collectively,
the "Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of the Company (collectively, the
"Records") reasonably requested by any such persons, and use reasonable
efforts to have the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested
by any such representative, underwriter, counsel or accountant in
connection with a Registration Statement or Prospectus, and make such
representatives of the Company available for discussion of such documents
as shall be reasonably requested by the Initial Purchasers; provided, that
any such records, documents, properties and such information that is
designated in writing by the Company, in good faith, as confidential at the
time of delivery of such records, documents, properties or information
shall be kept confidential by any such representative, underwriter, counsel
or accountant and shall be used only in connection with such Registration
Statement or Prospectus, unless such information has become available (not
in violation of this Agreement) to the public generally or through a third
party without an accompanying obligation of confidentiality, and except
that such representative, underwriter, counsel or accountant shall have no
liability, and shall not be in breach of this provision, if disclosure of
such confidential information is made in connection with a court proceeding
or required by law, and the Company shall be entitled to request that such
representative, underwriter, counsel or accountant sign a confidentiality
agreement to the foregoing effect. Each such Holder and each such
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally available
to the public through no fault or action of such Holder, such Participating
Broker-Dealer or any Inspector. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure of such Records
is necessarily under (i) or (ii) above, give notice to the Company and
allow the Company at its expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(p) (i) in the case of an Exchange Offer Registration Statement, a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an
Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to
<PAGE>
-19-
the Initial Purchasers and make such changes in any such document prior to
the filing thereof as Merrill Lynch on behalf of the Initial Purchasers may
reasonably request, and make the representatives of the Company available
for discussion of such documents as shall be reasonably requested by the
Initial Purchasers; and
(ii) in the case of a Shelf Registration, a reasonable time prior to
filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Securities, to the Initial Purchasers, to counsel on
behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make such changes
in any such document prior to the filing thereof as Merrill Lynch on behalf
of the Initial Purchasers, the counsel to the Holders or the underwriter or
underwriters reasonably request and make the representatives of the Company
available for discussion of such document as shall be reasonably requested
by the Holders of Registrable Securities, the Initial Purchasers on behalf
of such Holders, or any underwriter;
(q) in the case of a Shelf Registration, use its reasonable efforts
to cause all Registrable Securities to be listed on any securities exchange
on which similar debt securities issued by the Company are then listed if
requested by the Majority Holders; or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its reasonable efforts
to cause the Registrable Securities to be rerated by the appropriate rating
agencies, if so reasonably requested by the Majority Holders, or if
requested by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(s) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
at least 12 months which shall satisfy the provisions of Section 11 (a) of
the 1933 Act and Rule 158 thereunder;
(t) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any
due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(u) upon consummation of an Exchange Offer, obtain a customary
opinion of counsel to the Company addressed to the Trustee for the benefit
of all Holders of
<PAGE>
-20-
Registrable Securities participating in the Exchange Offer, and which
includes an opinion that (i) the Company has duly authorized, executed and
delivered the Exchange Securities and the related indenture, and (ii) each
of the Exchange Securities and related indenture constitute a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its respective terms (with customary exceptions).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Sections 3(e)(ii),
3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at its expense) all copies in such Holder's
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice to suspend
the disposition of Registrable Securities pursuant to a Shelf Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Sections 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, the Company shall be deemed to have used its reasonable efforts
to keep the Shelf Registration Statement effective during such period of
suspension provided that the Company shall use its reasonable efforts to file
and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Shelf Registration Statement and shall extend the
period during which the
<PAGE>
-21-
Shelf Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions.
4. Indemnification, Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an "Underwriter"), their
respective affiliates, and each Person, if any, who controls any of such parties
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each of their respective directors, officers, employees and agents, as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment or supplement thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, 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 Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or 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; provided that (subject to Section
4(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party,
except to the extent otherwise expressly provided in Section 4(c) hereof),
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
<PAGE>
-22-
untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, such Holder or Underwriter expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); provided, further, that such indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Initial Purchaser, Holder or Underwriter (or any persons controlling such
Initial Purchaser, Holder or Underwriter) (i) from whom the person asserting
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the final Prospectus
(or the final Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Securities to such person in any case where the
Company complied with its obligations under Section 3(c) or 3(f)(A)(ii) hereof,
as applicable, and any such untrue statement or omission or alleged untrue
statement or omission of a material fact contained in such preliminary
prospectus (or any amendment or supplement thereto) was corrected in the final
Prospectus (or the final Prospectus as amended or supplemented) or (ii) if it
resulted from the use of the Prospectus during a period when the use of the
Prospectus has been suspended in accordance with Section 2.4(b) or Sections
3(e)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof; provided, in each case, that
Holders received prior notice of such suspension.
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchasers, each Underwriter and the
other selling Holders, and each of their respective directors and officers, and
each Person, if any, who controls the Company, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration Statement
(or any amendment thereto) or any Prospectus included therein (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company expressly for use in the Shelf Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no such Holder shall be liable for
any claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect
<PAGE>
-23-
of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it 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; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. Notwithstanding the
foregoing, if it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel chosen
by it and approved by the indemnified parties defendant in such action (which
approval shall not be unreasonably withheld), unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying party shall not be liable for any fees
and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. In no event shall the indemnifying party or 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.
No indemnifying party shall, without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and ex-
<PAGE>
-24-
penses of counsel, an indemnifying party shall not be liable for any settlement
of the nature contemplated by Section 4(a)(ii) effected without its consent if
such indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it reasonably considers such request to be reasonable
and (ii) provides written notice to the indemnified party substantiating the
unpaid balance as unreasonable, in each case prior to the date of such
settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to, or insufficient to hold harmless, an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand, the
Holders on another hand, and the Initial Purchasers on another hand, from the
offering of the Securities, the Exchange Securities and the Registrable
Securities (taken together) included in such offering or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand, the
Holders on another hand and the Initial Purchasers on another hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company from the offering of the
Securities, the Exchange Securities and the Registrable Securities (taken
together) included in such offering shall in each case be deemed to include the
proceeds received by the Company in connection with the offering of the
Securities pursuant to the Purchase Agreement. The parties hereto agree that
any underwriting discount or commission or reimbursement of fees paid to the
Initial Purchasers pursuant to the Purchase Agreement shall not be deemed to be
a benefit received by the Initial Purchasers in connection with the offering of
the Exchange Securities or Registrable Securities included in such offering.
The relative fault of the Company on the one hand, the Holders on another
hand, and the Initial Purchasers on another hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company, the Holders or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 4 were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other
<PAGE>
-25-
method of allocation which does not take account of the equitable considerations
referred to above in this Section 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party 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 or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, 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 or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 4 are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A to the Purchase Agreement
and not joint.
5. Miscellaneous.
5.1. Rule 144 and Rule 144A. So long as any of the Registrable Securities
are outstanding, the Company will file with the Commission, to the extent then
permitted by the Commission, the annual reports, quarterly reports and other
documents that the Company would have been required to file with the Commission
pursuant to Sections 13(a) and 15(d) of the Exchange Act if the Company was
subject to such Sections, and the Company will promptly provide to the Trustee
copies of such reports and documents; provided, however, that if the Company is
for any reason unable to make such filings it will make available, upon request,
to any Holder of Registrable Securities or prospective purchaser of Registrable
Securities the information specified in Rule 144A(d)(4) of the Securities Act.
<PAGE>
-26-
5.2. No Inconsistent Agreements. The Company has not entered into and the
Company will not after the date of this Agreement enter into any agreement which
is inconsistent with the rights granted to the Holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with the rights
granted to the holders of the Company's other issued and outstanding securities
under any such agreements.
5.3. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure.
5.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered first-
class mail, telex, telecopier, or any courier guaranteeing overnight delivery
(a) if to a Holder, at the most current address given by such Holder to the
Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company,
initially at the Company's address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5. Successor and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such person shall be con-
<PAGE>
-27-
clusively deemed to have agreed to be bound by and to perform all of the terms
and provisions of this Agreement, including the restrictions on resale set forth
in this Agreement and, if applicable, the Purchase Agreement, and such person
shall be entitled to receive the benefits hereof.
5.6. Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder. Other than the
foregoing sentences, nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers, the Holders, including Participating Broker-
Dealers, each underwriter who participates in an offering of Registrable
Securities, their respective affiliates, and the Company and their respective
successors and the controlling persons, directors, officers, employees, and
agents referred to in Section 4 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole benefit of the Initial
Purchasers, the Holders and the Company and the other persons referenced by the
preceding sentences and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation.
5.7. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.8. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.10. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable,
<PAGE>
-28-
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CASE CORPORATION
By: /s/ Peter Hong
----------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Parker A. Weil
-------------------------------------
Name: Parker A. Weil
Title: Vice President
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CASE CORPORATION
By:
--------------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Parker A. Weil
------------------------------------
Name: Parker A. Weil
Title: Vice President
<PAGE>
Exhibit A
Form of Opinion of Counsel
--------------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
NationsBanc Montgomery Securities LLC
Salomon Smith Barney Inc.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
RE: Case Corporation 6.25% Notes due December 1, 2003
Ladies and Gentlemen:
We have acted as special counsel for Case Corporation, a Delaware
corporation (the "Company"), in connection with the sale by the Company to the
Initial Purchasers (as defined below) of $4,000,000 aggregate principal amount
of 6.25% Notes due December 1, 2003 (the "Notes") of the Company pursuant to the
Purchase Agreement dated December 2, 1998 (the "Purchase Agreement") among the
Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Chase
Securities Inc., Credit Suisse First Boston Corporation, NationsBanc Montgomery
Securities LLC and Salomon Smith Barney Inc. (collectively, the "Initial
Purchasers") and the filing by the Company of an Exchange Offer Registration
Statement on Form S-4 (File No. 333-____) filed with the Securities and Exchange
Commission (the "Commission") on _________, 199_ (such Registration Statement,
excluding the Statement of Eligibility on Form T-1 of the Trustee, is
hereinafter referred to as the "Registration Statement") in connection with an
Exchange Offer to be effected pursuant to the Registration Rights Agreement (the
"Registration Rights Agreement"), dated December 7 1998 between the Company and
the Initial Purchasers. This opinion is furnished to you pursuant to Section
3(f)(B) of the Registration Rights Agreement. Unless otherwise defined herein,
capitalized terms used in this opinion that are defined in the Registration
Rights Agreement are used herein as so defined.
<PAGE>
-2-
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as to
all matters of fact relevant to this opinion, we have assumed the completeness
and accuracy of, and are relying solely upon, the representations, warranties
and agreements of the Company and the Initial Purchasers set forth in the
Purchase Agreement and the statements set forth in certificates of public
officials and officers of the Company, without making any independent
investigation or inquiry with respect to the completeness or accuracy of such
representations, warranties, agreements or statements. We have also
participated on behalf of the Company in the preparation of the Registration
Statement, the final Prospectus relating thereto (including [any amendment or
supplement thereto and] all documents incorporated therein by reference) dated
_________, 199_ filed with the Commission on _________, 199_ pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Act") (such Prospectus
referred to herein as the "Prospectus").
Based upon the foregoing, we are of the opinion that the Registration
Statement (except for the financial statements and related schedules or other
financial or [statistical] data included or incorporated by reference therein,
as to which we are not called upon to express a belief), as of its effective
date, and the Prospectus (except for the financial statements and related
schedules or other financial or statistical data included or incorporated by
reference therein, as to which we are not called upon to express a belief), as
of the date hereof, complied as to form in all material respects with the
requirements of the Act and any applicable rules and regulations of the
Commission promulgated under the Act.
As indicated above, we have examined various documents and participated in
conferences with representatives of the Company, its counsel and its accountants
and with representatives of the Initial Purchasers, at which times the contents
of the Registration Statement, the Prospectus and related matters were
discussed. However, except as specifically noted above, we do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus. Subject to the
foregoing, we advise you that no facts have come to our attention that cause us
to believe that the Registration Statement (except for the financial statements
and related schedules or other financial or statistical data included or
incorporated by reference therein, as to which we are not called upon to express
a belief), as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (except for the financial statements and related schedules or other
financial or statistical data included or incorporated by reference therein, as
to which we are not called upon to express a belief), as of the date hereof,
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
<PAGE>
-3-
Our opinions expressed herein are limited to the federal laws of the United
States.
This opinion is furnished by us pursuant to Section 3(f)(B) of the
Registration Rights Agreement and is solely for your benefit. This opinion is
not to be used, circulated, quoted or otherwise referred to for any purpose
without our specific prior written approval.
Very truly yours,
MAYER, BROWN & PLATT
<PAGE>
MAYER, BROWN & PLATT
190 South LaSalle Street
Chicago, Illinois 60603
Exhibit 5
April 20, 1999
Case Corporation
700 State Street
Racine, Wisconsin 53404
Re: Registration Statement on Form S-4
$300 million aggregate principal amount 6 1/4% Notes due December 1, 2003,
Series B
Ladies and Gentlemen:
We have acted as special counsel to Case Corporation, a Delaware
corporation (the "Company"), in connection with the Company's registration of
$300,000,000 aggregate principal amount of its 6 1/4% Notes due December 1,
2003, Series B (the "New Notes") on a Registration Statement on Form S-4 (the
"Registration Statement") filed on April 20, 1999 with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act").
The New Notes will be offered in exchange (the "Exchange Offer") for any and all
of the Company's 6 1/4% Notes due December 1, 2003, Series A (the "Old Notes").
The Old Notes were issued, and the New Notes will be issued, pursuant to the
Indenture between the Company and The Bank of New York, as Trustee, dated as of
July 31, 1995 (the "Indenture"). In that connection, we have examined such
corporate and other records, instruments, certificates and documents as we
considered necessary to enable us to express this opinion.
Based on the foregoing, it is our opinion that, upon completion of the
Exchange Offer, the New Notes will have been duly authorized for issuance and,
when the New Notes are duly executed, authenticated, issued and delivered in
accordance with the Indenture, the New Notes will constitute valid and legally
binding obligations of the Company under the laws of the State of New York,
entitled to the benefits of the Indenture, subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles (whether
considered in a proceeding at law or in equity).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the related prospectus under the
caption "Legal Matters" with respect to the matters stated therein.
<PAGE>
We are admitted to practice law in the States of Illinois and New York, and
we express no opinions as to matters under or involving any laws other than the
laws of the States of Illinois and New York, the federal laws of the United
States of America and the General Corporation Law of the State of Delaware.
Very truly yours,
/s/ MAYER, BROWN & PLATT
Mayer, Brown & Platt
EAR/DWG
<PAGE>
EXHIBIT 12
----------
Case Corporation
Ratio of Earnings to Fixed Charges*
(Dollars in millions)
<TABLE>
<CAPTION>
Three Months
Ended
March 31, Year Ended December 31,
------------ --------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income (loss) (48) 69 64 403 316 337 131
Add:
Interest 75 47 240 170 160 174 160
Amortization of capitalized debt expense 1 3 1 4 6
Portion of rentals representative of interest factor 3 3 12 12 12 12 11
Income tax expense (benefit) and other taxes
on income (11) 33 42 191 185 81 93
Fixed charges of 50% owned, unconsolidated subsidiaries 1 1 5 3 3 2 2
Extraordinary items (net of taxes) 33 5
Cumulative effect of change in accounting principles
(net of taxes) 9 29
---- ---- ---- ---- ---- ---- ----
Earnings as defined 21 153 366 780 713 621 431
==== ==== ==== ==== ==== ==== ====
Interest 75 47 240 170 160 174 160
Interest capitalized 1 3 3 2 1 2 3
Amortization of capitalized debt expense 1 3 1 4 6
Portion of rentals representative of interest factor 3 12 12 12 12 11
Fixed charges of 50% owned, unconsolidated subsidiaries 1 1 5 3 3 2 2
---- ---- ---- ---- ---- ---- ----
Fixed charges as defined 81 51 263 188 180 196 176
==== ==== ==== ==== ==== ==== ====
Ratio of earnings to fixed charges -- 3.00 1.39 4.15 3.96 3.17 2.45
Deficiency of earnings to fixed charges $(60)
</TABLE>
*Excludes impact of preferred dividends
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 21, 1999
included in Case Corporation's Form 10-K/A, for the year ended December 31, 1998
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
April 14, 1999
<PAGE>
EXHIBIT 25
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
CASE CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 76-0433811
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
700 State Street 53404
Racine, Wisconsin (Zip code)
(Address of principal executive offices)
___________________________
6-1/4% Registered Exchange Notes due December 1, 2003
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006,and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 14th day of April, 1999.
THE BANK OF NEW YORK
By: /s/REMO J. REALE
------------------------------------------
Name: REMO J. REALE
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 14th day of April, 1999.
THE BANK OF NEW YORK
By: /s/Remo J. Reale
------------------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin............. $ 3,951,273
Interest-bearing balances...................................... 4,134,162
Securities:
Held-to-maturity securities.................................... 932,468
Available-for-sale securities.................................. 4,279,246
Federal funds sold and Securities purchased under
agreements to resell........................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned income.............37,861,802
LESS Allowance for loan and lease losses...............619,791
LESS Allocated transfer risk reserve.....................3,572
Loans and leases net of unearned income allowance and reserve.. 37,238,439
Trading Assets.................................................... 1,551,556
Premises and fixed assets (including capitalized leases).......... 684,181
Other real estate owned........................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies........................................... 196,032
Customer's liability to this bank on acceptances outstanding...... 895,160
Intangible assets................................................. 1,127,375
Other assets...................................................... 1,915,742
-----------
Total assets...................................................... $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices............................................ $27,020,578
Noninterest-bearing..................................11,271,304
Interest-bearing.....................................15,749,274
In foreign offices, Edge and Agreement
subsidiaries and IBFs....................................... 17,197,743
Noninterest-bearing.....................................103,007
Interest-bearing.....................................17,094,736
Federal funds purchased and Securities sold
under agreements to repurchase................................. 1,761,170
Demand notes issued to the U.S. Treasury.......................... 125,423
Trading liabilities............................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................... 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............... 31,639
Bank's liability on acceptances executed and outstanding.......... 900,390
Subordinated notes and debentures................................. 1,308,000
Other liabilities................................................. 2,708,852
-----------
Total liabilities................................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock...................................................... 1,135,284
Surplus........................................................... 764,443
Undivided profits and capital reserves............................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities.................................. 82,367
Cumulative foreign currency translation adjustments............... (29,725)
-----------
Total equity capital.............................................. 5,494,537
-----------
Total liabilities and equity capital.............................. $60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyl}
Gerald L. Hassell} Directors
Alan R. Griffith}
- --------------------------------------------------------------------------------
<PAGE>
EXHIBIT 99(a)
FORM OF
LETTER OF TRANSMITTAL
FOR TENDERS OF
$300,000,000 Aggregate Principal Amount of
6 1/4% Notes due December 1, 2003, Series A
CASE CORPORATION
Pursuant to the Prospectus
dated ________, 1999 of Case Corporation
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
_____________, 1999, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERED OLD
NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON
THE EXPIRATION DATE.
Deliver to: The Bank of New York, Exchange Agent:
By Registered or Certified Mail: By Overnight Courier or Hand:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street
Floor 7-E Corporate Trust Services Window
New York, NY 10286 Ground Level
Attention: Reorganization Section New York, NY 10286
Attention: Reorganization Section
By Facsimile:
(212) 815-6339
Confirm by Telephone for Eligible Institutions:
_________________________________
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
The undersigned acknowledges that he or she has received the prospectus,
dated ___________, 1999 (the "Prospectus"), of Case Corporation, a Delaware
corporation (the "Company"), and this Letter of Transmittal, which may be
amended from time to time (this "Letter"), which together constitute the
Company's offer (the "Exchange
<PAGE>
Offer") to exchange up to $300 million aggregate principal amount of 6 1/4%
Notes due December 1, 2003, Series B (the "New Notes") of the Company for a like
principal amount of the Company's issued and outstanding 6 1/4% Notes due
December 1, 2003, Series A (the "Old Notes" and sometimes collectively with the
New Notes, the "Notes"), with the Holders thereof.
As used herein, "Holder" shall mean the owner of any Old Notes as reflected
in the records of The Bank of New York as registrar for the Old Notes (in such
capacity, the "Registrar"), or any person whose Old Notes are held of record by
DTC (as defined below).
For each Old Note accepted for exchange, the Holder of such Old Note will
receive a New Note having a principal amount equal to that of the surrendered
Old Note. Each New Note will bear interest from the most recent date to which
interest has been paid or duly provided for on the Old Note surrendered in
exchange for such New Note or, if no such interest has been paid or duly
provided for on such Old Note, from December 7, 1998. Holders of the Old Notes
whose Old Notes are accepted for exchange will not receive accrued interest on
such Old Notes for any period from and after the last interest payment date to
which interest has been paid or duly provided for on such Old Notes prior to the
original issue date of the New Notes or, if no such interest has been paid or
duly provided for, will not receive any accrued interest on such Old Notes, and
will be deemed to have waived the right to receive any interest on such Old
Notes accrued from and after such interest payment date or, if no such interest
has been paid or duly provided for, from and after December 7, 1998.
This Letter is to be used: (a) by all Holders who are not members of the
Automated Tender Offering Program ("ATOP") at the Depository Trust Company
("DTC"); (b) by Holders who are ATOP members but choose not to use ATOP; or (c)
if the Old Notes are to be tendered in accordance with the guaranteed delivery
procedures set forth in "The Exchange Offer--Guaranteed Delivery Procedures"
section of the Prospectus. See Instruction 2. Delivery of this Letter to DTC
does not constitute delivery to the Exchange Agent.
Notwithstanding anything to the contrary in the Registration Rights
Agreement dated December 7, 1998 among the Company and the original purchasers
of Old Notes (the "Registration Rights Agreement"), the Company will accept for
exchange any and all Old Notes validly tendered on or prior to 5:00 p.m., New
York City time, on _________, 1999, unless the Exchange Offer is extended by the
Company (the "Expiration Date"). Tenders of Old Notes may be withdrawn at any
time prior to 5:00 p.m., New York City time, on the Expiration Date.
IMPORTANT: HOLDERS WHO WISH TO TENDER OLD NOTES IN THE EXCHANGE OFFER MUST
COMPLETE THIS LETTER OF TRANSMITTAL AND TENDER THE OLD NOTES TO THE EXCHANGE
AGENT AND NOT TO THE COMPANY.
The Exchange Offer is not conditioned upon any minimum principal amount of
Old Notes being tendered for exchange. However, the Exchange Offer is subject to
certain conditions. Please see the Prospectus under "The Exchange Offer--
Conditions of the Exchange Offer."
The Exchange Offer is not being made to, nor will tenders be accepted from
or on behalf of, Holders of Old Notes in any jurisdiction in which the making or
acceptance of the Exchange Offer would not be in compliance with the laws of
such jurisdiction.
The instructions included with this Letter of Transmittal must be
followed in their entirety. Questions and requests for assistance or for
additional copies of the Prospectus or this Letter of Transmittal may be
directed to the Exchange Agent at the address listed on the front page hereof.
-2-
<PAGE>
APPROPRIATE SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
The undersigned hereby tenders to the Company the principal amount of Old
Notes indicated below under "Description of Old Notes," in accordance with and
upon the terms and subject to the conditions set forth in the Prospectus,
receipt of which is hereby acknowledged, and in this Letter of Transmittal, for
the purpose of exchanging each $1,000 principal amount of Old Notes designated
herein held by the undersigned and tendered hereby for $1,000 principal amount
of the New Notes. New Notes will be issued only in integral multiples of $1,000
to each tendering Holder of Old Notes whose Old Notes are accepted in the
Exchange Offer. Subject to the foregoing, Holders may tender all or a portion of
their Old Notes pursuant to the Exchange Offer.
Subject to, and effective upon, the acceptance for exchange of the Old
Notes tendered herewith in accordance with the terms of the Exchange Offer, the
undersigned hereby sells, assigns and transfers to, or upon the order of, the
Company all right, title and interest in and to all such Old Notes that are
being tendered hereby and that are being accepted for exchange pursuant to the
Exchange Offer. The undersigned hereby irrevocably constitutes and appoints the
Exchange Agent as the true and lawful agent and attorney-in-fact of the
undersigned (with full knowledge that the Exchange Agent also acts as the agent
of the Company), with respect to the Old Notes tendered hereby and accepted for
exchange pursuant to the Exchange Offer with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest) to deliver the Old Notes tendered hereby to the Company (together with
all accompanying evidences of transfer and authenticity) for transfer or
cancellation by the Company.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall not be affected by, and shall survive, the death or incapacity
of the undersigned and any obligation of the undersigned hereunder shall be
binding upon the heirs, executors, administrators, legal representatives,
successors and assigns of the undersigned. Any tender of Old Notes hereunder may
be withdrawn only in accordance with the procedures set forth in the
instructions contained in this Letter of Transmittal. See Instruction 4 hereto.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, exchange, assign and transfer the Old Notes
tendered hereby and that the Company will acquire good and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim. The undersigned will, upon request, execute
and deliver any additional documents deemed by the Company to be necessary or
desirable to complete the assignment and transfer of the Old Notes tendered. The
undersigned has read and agrees to all of the terms of the Exchange Offer.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Old Notes tendered hereby. All authority
conferred or agreed to be conferred in this Letter and every obligation of the
undersigned hereunder shall be binding upon the successors, assigns, heirs,
executors, administrators, trustees in bankruptcy and legal representatives of
the undersigned and shall not be affected by, and shall survive, the death or
incapacity of the undersigned. This tender may be withdrawn only in accordance
with the procedures set forth in "The Exchange Offer--Withdrawal Rights" section
of the Prospectus.
The name(s) and address(es) of the registered Holder(s) should be printed
herein under "Description of Old Notes" (unless a label setting forth such
information appears thereunder), exactly as they appear on the Old Notes
tendered hereby. The certificate number(s) and the principal amount of Old Notes
to which this Letter of Transmittal relates, together with the principal amount
of such Old Notes that the undersigned wishes to tender, should be indicated in
the appropriate boxes herein under "Description of Old Notes."
-3-
<PAGE>
The undersigned understands that the tender of Old Notes pursuant to one of
the procedures described in the Prospectus under "The Exchange Offer--Procedures
for Tendering Old Notes" and the Instructions hereto will constitute the
tendering Holder's acceptance of the terms and the conditions of the Exchange
Offer. The Company's acceptance for exchange of Old Notes tendered pursuant to
the Exchange Offer will constitute a binding agreement between the tendering
Holder and the Company upon the terms and subject to the conditions herein and
in the Prospectus.
The undersigned acknowledges that the Company is making the Exchange Offer
in reliance on the position of the staff of the Securities and Exchange
Commission (the "SEC") as set forth in certain interpretive letters addressed to
third parties in other transactions. However, the Company has not sought its own
interpretive letter. Although there has been no indication of any change in the
staff's position, there can be no assurance that the staff of the SEC would make
a similar determination with respect to the Exchange Offer as it has in the
interpretive letters to third parties. Based on these interpretations by the
staff of the SEC, and except as provided below, the Company believes that New
Notes issued pursuant to the Exchange Offer to a Holder in exchange for Old
Notes may be offered for resale, resold and otherwise transferred by a Holder
that participates in the Exchange Offer and is not a broker-dealer, without
further compliance with the registration and prospectus delivery provisions of
the Securities Act of 1933, as amended (the "Securities Act"). In order to
receive New Notes that are freely tradeable, a Holder must acquire the New Notes
in the ordinary course of its business and may not participate, or have any
arrangement or understanding with any person to participate, in the distribution
(within the meaning of the Securities Act) of the New Notes. Holders wishing to
participate in the Exchange Offer must make the representations described below.
Any Holder of Old Notes (a) who is the Company's "affiliate" (as defined in Rule
405 under the Securities Act); (b) who did not acquire the New Notes in the
ordinary course of its business; (c) who intends to participate in the Exchange
Offer for the purpose of distributing (within the meaning of the Securities Act)
New Notes; or (d) who is a broker-dealer who purchased Old Notes from the
Company to resell such Old Notes pursuant to Rule 144A under the Securities Act
or any other available exemption under the Securities Act, will be subject to
separate restrictions. Each Holder in any of the above categories (x) will not
be able to rely on the interpretations of the SEC staff in the above-mentioned
interpretive letters; (y) will not be permitted or entitled to tender Old Notes
in the Exchange Offer; and (z) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or other
transfer of Old Notes unless such sale is made pursuant to an exemption from
such requirements.
If the undersigned is a broker-dealer that receives New Notes for its own
account pursuant to the Exchange Offer, it acknowledges that it acquired the Old
Notes for its own account as a result of market-making activities or other
trading activities and agrees that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such New
Notes. By so acknowledging and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. Based on the position taken by the staff of the SEC in the
interpretive letters referred to above, the Company believes that broker-dealers
who acquired Old Notes for their own accounts, as a result of market-making or
other trading activities ("Participating Broker-Dealers") may fulfill their
prospectus delivery requirements with respect to the New Notes received upon
exchange of Old Notes (other than Old Notes which represent an unsold allotment
from the original sale of the Old Notes) with a prospectus meeting the
requirements of the Securities Act, which may be the prospectus prepared for the
Exchange Offer so long as it contains a description of the plan of distribution
with respect to the resale of such New Notes. Accordingly, the Prospectus, as it
may be amended or supplemented from time to time, may be used by a Participating
Broker-Dealer during the period referred to below in connection with resales of
New Notes received in exchange for Old Notes where such Old Notes were acquired
by such Participating Broker-Dealer for its own account as a result of market-
making or other trading activities. Subject to certain provisions set forth in
the Registration Rights Agreement, the Company has agreed that the Prospectus
may be used by a Participating Broker-Dealer in connection with resales of such
New Notes. See the Prospectus under "Plan of Distribution." However, a
Participating Broker-Dealer who intends to use the Prospectus in connection with
the resale of New Notes received in exchange for Old Notes pursuant to the
Exchange Offer must notify the Company, or cause the Company to be notified, on
or prior to the Expiration Date, that it is a Participating Broker-Dealer.
-4-
<PAGE>
Such notice may be given in the space provided for that purpose below or may be
delivered to the Exchange Agent at the address set forth on the first page
hereof. Any Participating Broker-Dealer who is an "affiliate" of the Company may
not rely on such interpretive letters and must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
resale transaction.
If the undersigned is a Participating Broker-Dealer who tenders Old Notes
pursuant to the Exchange Offer, it agrees that, upon receipt of notice from the
Company of the occurrence of any event or the discovery of any fact which makes
any statement contained in the Prospectus untrue in any material respect or
which causes the Prospectus to omit to state a material fact necessary in order
to make the statements contained in the Prospectus, in light of the
circumstances under which they were made, not misleading or of the occurrence of
certain other events specified in the Registration Rights Agreement, such
Participating Broker-Dealer will suspend the sale of New Notes pursuant to the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission and has furnished copies of the amended or
supplemented Prospectus to such Participating Broker-Dealer or the Company has
given notice that the sale of the New Notes may be resumed, as the case may be.
The undersigned hereby represents and warrants to the Company that (a) the
New Notes to be acquired in connection with the Exchange Offer by it and each
beneficial owner of the Old Notes that it represents (a "Beneficial Owner") are
being acquired by the Holder and such Beneficial Owner in the ordinary course of
business of the Holder and such Beneficial Owner, (b) it and such Beneficial
Owner are not participating, do not intend to participate, and have no
arrangement or understanding with any person to participate, in the distribution
(within the meaning of the Securities Act) of the New Notes, (c) neither it nor
such Beneficial Owner is a broker-dealer that acquired the Old Notes directly
from the Company in order to resell such Old Notes pursuant to Rule 144A under
the Securities Act or any other exemption under the Securities Act, (d) that if
it is a Participating Broker-Dealer, it will deliver a prospectus in connection
with any resale of New Notes acquired in the Exchange Offer, and (e) neither it
nor any such Beneficial Owner is an "affiliate," as defined under Rule 405 under
the Securities Act, of the Company.
The undersigned understands that the New Notes issued in consideration of
Old Notes accepted for exchange, and/or any principal amount of Old Notes not
tendered or not accepted for exchange, will only be issued in the name of the
Holder(s) appearing herein under "Description of Old Notes." Unless otherwise
indicated under "Special Delivery Instructions," please mail the New Notes
issued in consideration of Old Notes accepted for exchange, and/or any principal
amount of Old Notes not tendered or not accepted for exchange (and accompanying
documents, as appropriate), to the Holder(s) at the address(es) appearing herein
under "Description of Old Notes." In the event that the Special Delivery
Instructions are completed, please mail the New Notes issued in consideration of
Old Notes accepted for exchange, and/or any Old Notes for any principal amount
not tendered or not accepted for exchange, in the name of the Holder(s)
appearing herein under "Description of Old Notes," and send such New Notes
and/or Old Notes to the address(es) so indicated. Any transfer of Old Notes to a
different holder must be completed according to the provisions on transfer of
Old Notes contained in the Indenture, dated as of July 31, 1995, between the
Company and The Bank of New York, as trustee, (the "Indenture") or on the Old
Note.
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF OLD NOTES"
BELOW AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS
SET FORTH IN SUCH BOX BELOW.
-5-
<PAGE>
INSTRUCTIONS
Forming Part of the Terms and Conditions
of the Exchange Offer
1. Guarantee of Signatures. Each signature on this Letter of Transmittal
or a notice of withdrawal (as described in Instruction 4), as the case may be,
must be guaranteed unless the Old Notes surrendered for exchange are tendered
(a) by a Holder of the Old Notes who has not completed the box entitled "Special
Delivery Instructions," or (b) for the account of an Eligible Institution (as
defined below). If a signature on a Letter of Transmittal or a notice of
withdrawal, as the case may be, is required to be guaranteed, such signature
must be guaranteed by a participant in a recognized Medallion Signature Program
(a "Medallion Signature Guarantor"). If the Letter of Transmittal is signed by a
person other than the Holder of the Old Notes, the Old Notes surrendered for
exchange must be endorsed by the Holder, with the signature thereon guaranteed
by a Medallion Signature Guarantor. The term "Eligible Institution" means a firm
which is a member of a registered national securities exchange or of the
National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or any other
"eligible guarantor institution" as such term is defined in Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended.
2. Delivery of this Letter of Transmittal and Old Notes; Guaranteed
Delivery Procedures. This Letter of Transmittal is to be used: (a) by all
Holders who are not ATOP members, (b) by Holders who are ATOP members but choose
not to use ATOP or (c) if the Old Notes are to be tendered in accordance with
the guaranteed delivery procedures set forth in the Prospectus under "The
Exchange Offer--Guaranteed Delivery Procedures." Except as set forth below, a
Holder who wishes to tender Old Notes for exchange pursuant to the Exchange
Offer must transmit such Old Notes, together with a properly completed and duly
executed Letter of Transmittal, including all other documents required by this
Letter of Transmittal, to the Exchange Agent at the address set forth on the
front page of this Letter of Transmittal prior to 5:00 p.m., New York City time
on the Expiration Date. THE METHOD OF DELIVERY OF OLD NOTES, LETTERS OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE
TENDERING HOLDER. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED
MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, BE USED. INSTEAD OF
DELIVERY BY MAIL, IT IS RECOMMENDED THAT EACH HOLDER USE AN OVERNIGHT OR HAND
DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE
TIMELY DELIVERY. The "Expiration Date" shall be _________________, 1999 at 5:00
p.m., New York City time, unless the Company, in its sole discretion, extends
the Exchange Offer, in which case the Expiration Date shall be the latest date
and time to which the Exchange Offer is extended. In order to extend the
Exchange Offer, the Company will notify the Exchange Agent of any extension by
oral or written notice and will make a public announcement thereof, each prior
to 9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
LETTERS OF TRANSMITTAL SHOULD NOT BE SENT TO THE COMPANY OR TO DTC.
Any financial institution that is a participant in DTC's Book-Entry
Transfer Facility system may make book-entry delivery of the Old Notes by
causing DTC to transfer the Old Notes into the Exchange Agent's account in
accordance with DTC's procedures for such transfer. To be timely, book-entry
delivery of Old Notes requires receipt of a confirmation of a book-entry
transfer before the expiration date. Although delivery of the Old Notes may be
effected through book-entry transfer into the Exchange Agent's account at DTC,
this Letter of Transmittal (or facsimile), properly completed and executed, with
any required signature guarantees and any other required documents or an agent's
message (as described below), must in any case, be delivered to and received by
the Exchange Agent at its address on or before the Expiration Date, or the
guaranteed delivery procedure set forth below must be complied with.
-6-
<PAGE>
DTC has confirmed that the Exchange Offer is eligible for ATOP.
Accordingly, participants in ATOP may, instead of physically completing and
signing the Letter of Transmittal and delivering it to the Exchange Agent,
electronically transmit their acceptance of the Exchange Offer by causing DTC to
transfer Old Notes to the Exchange Agent in accordance with DTC's ATOP
procedures for transfer. DTC will then send an agent's message to the Exchange
Agent.
The term "agent's message" means a message transmitted by DTC, received by
the Exchange Agent and forming part of the book-entry confirmation, which states
that DTC has received an express acknowledgment from a participant in ATOP that
is tendering Old Notes that are the subject of such book-entry confirmation,
that the participant has received and agrees to be bound by the terms of the
Letter of Transmittal or, in the case of an agent's message relating to
guaranteed delivery, that the participant has received and agrees to be bound by
the Notice of Guaranteed Delivery, and that the Company may enforce such
agreement against that participant.
Holders who wish to tender their Old Notes and (a) whose Old Notes are not
immediately available or (b) who cannot deliver their Old Notes or any other
documents required by this Letter of Transmittal to the Exchange Agent prior to
the Expiration Date (or complete the procedure for book-entry transfer on a
timely basis), may tender their Old Notes according to the following guaranteed
delivery procedures: (1) such tender must be made by or through an Eligible
Institution and a Notice of Guaranteed Delivery must be signed by such Holder,
(2) on or prior to the Expiration Date, the Exchange Agent must have received
from the Holder and the Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the Holder, the certificate
number or numbers of the tendered Old Notes, and the principal amount of
tendered Old Notes, stating that the tender is being made thereby and
guaranteeing that, within four business days after the date of delivery of the
Notice of Guaranteed Delivery, the tendered Old Notes, a duly executed Letter of
Transmittal and any other required documents will be deposited by the Eligible
Institution with the Exchange Agent, and (3) such properly completed and
executed documents required hereby and the tendered Old Notes in proper form for
transfer (or confirmation of a book-entry transfer of such Old Notes into the
Exchange Agent's account at DTC) must be received by the Exchange Agent within
four business days after the Expiration Date. Any Holder who tenders Old Notes
pursuant to the guaranteed delivery procedures described above must deliver the
Notice of Guaranteed Delivery and Letter of Transmittal relating to such Old
Notes to the Exchange Agent prior to 5:00 p.m., New York City time, on the
Expiration Date.
Any Beneficial Owner of the Old Notes whose Old Notes are registered in the
name of a broker, dealer, commercial bank, trust company or other nominee and
who wishes to tender Old Notes in the Exchange Offer should contact such
registered holder promptly and instruct such registered holder to tender on such
Beneficial Owner's behalf. If such Beneficial Owner wishes to tender directly,
such Beneficial Owner must, prior to completing and executing this Letter of
Transmittal and tendering Old Notes, make appropriate arrangements to register
ownership of the Old Notes in such Beneficial Owner's name. Beneficial Owners
should be aware that the transfer of registered ownership may take considerable
time.
No alternative, conditional or contingent tenders will be accepted. All
tendering Holders, by execution of this Letter of Transmittal (or facsimile
hereof), waive any right to receive notice of acceptance of their Old Notes for
exchange.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and principal amount of the Old Notes to which this Letter
of Transmittal relates should be listed on a separate signed schedule attached
hereto.
4. Withdrawal of Tender. Tenders of Old Notes may be withdrawn at any
time prior to 5:00 p.m., New York City time, on the Expiration Date.
-7-
<PAGE>
Tenders of the Old Notes may be withdrawn by delivery of a written or
facsimile transmission notice to the Exchange Agent, at its address set forth on
the first page hereof, at any time prior to 5:00 p.m., New York City time, on
the Expiration Date. Any such notice of withdrawal must (a) specify the name of
the person having deposited the Old Notes to be withdrawn (the "Depositor"), (b)
identify the Old Notes to be withdrawn (including the certificate number or
numbers and principal amount of such Old Notes) or, in the case of Old Notes
transferred by book-entry transfer, the name and number of the account at DTC to
be credited, (c) be signed by the Holder in the same manner as the original
signature on the Letter of Transmittal by which such Old Notes were tendered
(including any required signature guarantees) or be accompanied by a bond power
in the name of the person withdrawing the tender, in satisfactory form as
determined by the Company in its sole discretion, duly executed by the Holder,
with the signature thereon guaranteed by a Medallion Signature Guarantor
together with the other documents required upon transfer by the Indenture or the
Old Notes, and (4) specify the name in which such Old Notes are to be re-
registered, if different from the Depositor. All questions as to the validity,
form and eligibility (including time of receipt) of such notices will be
determined by the Company, in its sole discretion. The Old Notes so withdrawn
will be deemed not to have been validly tendered for exchange for purposes of
the Exchange Offer. Any Old Notes which have been tendered for exchange but
which are withdrawn will be returned to the applicable Holder without cost to
such Holder as soon as practicable after withdrawal. Properly withdrawn Old
Notes may be retendered by following one of the procedures described in the
Prospectus under "the Exchange Offer--Procedures for Tendering Old Notes" at any
time on or prior to the Expiration Date.
5. Partial Tenders; Pro Rata Effect. Tenders of the Old Notes will be
accepted only in integral multiples of $1,000. If less than the entire principal
amount evidenced by any Old Notes is to be tendered, fill in the principal
amount that is to be tendered in the box entitled "Principal Amount Tendered"
below. The entire principal amount of all Old Notes delivered to the Exchange
Agent will be deemed to have been tendered unless otherwise indicated.
6. Signatures on this Letter of Transmittal; Bond Powers and Endorsements.
If this Letter of Transmittal is signed by the registered Holder(s) of the Old
Notes tendered hereby, the signature must correspond with the name as written on
the face of the certificate representing such Old Notes without alteration,
enlargement or any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the Old Notes tendered hereby are registered in different names,
it will be necessary to complete, sign and submit as many separate copies of
this Letter of Transmittal and any necessary accompanying documents as there are
different registrations.
When this Letter of Transmittal is signed by the Holder(s) of Old Notes
listed and tendered hereby, no endorsements or separate bond powers are
required.
If this Letter of Transmittal, or any endorsement, bond power, power of
attorney or any other document required by the Letter of Transmittal is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company, in the sole discretion of the
Company, of such person's authority to so act must be submitted.
7. Special Delivery Instructions. Tendering Holders should indicate in
the applicable box the name and address to which New Notes issued in
consideration of Old Notes accepted for exchange, or Old Notes for principal
amounts not exchanged or not tendered, are to be sent, if different from the
name and address of the person signing this Letter of Transmittal.
-8-
<PAGE>
8. Waiver of Conditions. The Company reserves the absolute right to waive
any of the specified conditions in the Exchange Offer, in whole at any time or
in part from time to time, in the case of any Old Notes tendered hereby. See
"The Exchange Offer--Conditions to the Exchange Offer" in the Prospectus.
9. Transfer Taxes. The Company will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, a transfer tax is imposed for any reason other than the exchange of Old
Notes pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered holder or any other persons) will be payable
by the tendering Holder. If satisfactory evidence of payment of such taxes or
exemption is not submitted with the Letter of Transmittal, the amount of such
transfer taxes will be billed directly to such tendering Holder.
10. Irregularities. All questions as to the validity, form, eligibility
(including time of receipt), acceptance and withdrawal of Old Notes tendered for
exchange will be determined by the Company in its sole discretion, which
determination shall be final and binding. The Company reserves the absolute
right to reject any and all Old Notes not properly tendered and to reject any
Old Notes the acceptance of which might, in the judgment of the Company or its
counsel, be unlawful. The Company also reserves the absolute right to waive any
defects or irregularities or conditions of the Exchange Offer as to particular
Old Notes either before or after the Expiration Date (including the right to
waive the ineligibility of any Holder who seeks to tender Old Notes in the
Exchange Offer). The interpretation of the terms and conditions of the Exchange
Offer (including the Letter of Transmittal and its instructions) by the Company
shall be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes for exchange must be
cured within such period of time as the Company shall determine. Neither the
Company nor the Exchange Agent shall be under any duty to give notification of
defects in such tenders or shall incur any liability for failure to give such
notification. The Exchange Agent will use reasonable efforts to give
notification of defects or irregularities with respect to tenders of Old Notes
for exchange but shall not incur any liability for failure to give such
notification. Tenders of Old Notes will not be deemed to have been made until
such irregularities have been cured or waived.
11. Requests for Assistance or Additional Copies. Questions relating to the
procedure for tendering, as well as requests for additional copies of the
Prospectus and this Letter of Transmittal may be directed to the Exchange Agent
at the address and telephone number set forth above.
12. Mutilated, Lost, Stolen or Destroyed Certificates. Holders whose
certificates for Old Notes have been mutilated, lost, stolen or destroyed should
contact the Exchange Agent at the address indicated above for further
instructions.
13. Tax Identification Number. A tendering Holder whose Old Notes are
accepted for exchange should provide the Company (as payor) with such Holder's
correct Taxpayer Identification Number ("TIN") on the Substitute Form W-9 below,
which, in the case of a tendering Holder who is an individual, is his or her
social security number. If the Company is not provided with the current TIN or
an adequate basis for an exemption, such tendering Holder may be subject to a
$50 penalty imposed by the Internal Revenue Service. In addition all reportable
payments made on New Notes after the exchange may be subject to backup
withholding in an amount equal to 31%. If withholding results in an overpayment
of taxes, a refund may be obtained.
Exempt Holders of Old Notes (including, among others, all corporations and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. See the enclosed Guidelines of Certification of
Taxpayer Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for
additional instructions.
To prevent backup withholding on reportable payments made on New Notes
after the exchange, each tendering Holder of Old Notes should provide its
correct TIN by completing the "Substitute Form W-9" below, certifying that the
TIN provided is correct (or that such Holder is
-9-
<PAGE>
awaiting a TIN) and that (a) the Holder is exempt from backup withholding, (b)
the Holder has not been notified by the Internal Revenue Service that such
Holder is subject to backup withholding as a result of a failure to report all
interest or dividends or (c) the Internal Revenue Service has notified the
Holder that such Holder is no longer subject to backup withholding. If the
tendering Holder of Old Notes is a nonresident alien or foreign entity not
subject to backup withholding, such Holder should give the Company a completed
Form W-8, Certificate of Foreign Status. These forms may be obtained from the
Exchange Agent. If the Old Notes are in more than one name or are not in the
name of the actual owner, such Holder should consult the W-9 Guidelines for
information on which TIN to report. If such Holder does not have a TIN, such
Holder should consult the W-9 Guidelines for instructions on applying for a TIN,
check the box in Part 3 of the Substitute Form W-9 and write "applied for" in
lieu of its TIN. Note: checking this box and writing "applied for" on the form
means that such Holder has already applied for a TIN or that such Holder intends
to apply for one in the near future. If such Holder does not provide its TIN to
the Company within 60 days, backup withholding will begin and continue until
such Holder furnishes its TIN to the Company.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), TOGETHER WITH
ALL REQUIRED DOCUMENTS, OR A NOTICE OF GUARANTEED DELIVERY, MUST BE RECEIVED BY
THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
-10-
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(see Instruction 13)
PAYOR'S NAME: CASE CORPORATION
<TABLE>
<S> <C> <C>
====================================================================================================================================
SUBSTITUTE
Part 1--PLEASE PROVIDE YOUR TIN IN THE BOX Social Security Number OR
Form W-9 AT RIGHT AND CERTIFY BY SIGNING AND Employer Identification Number
DATING BELOW.
---------------------------
Department of the Treasury ----------------------------------------------------------------------------------------------------
Internal Revenue Service Part 2--CERTIFICATION--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am
Payor's Request for Taxpayer waiting for a number to be issued to me) and
Identification Number (TIN)
(2) I am not subject to backup withholding either because: (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS")
that I am subject to backup withholding as a result of a failure to report all interest
or dividends, or (c) the IRS has notified me that I am no longer subject to backup
withholding.
----------------------------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross out Part 3--
item (2) above if you have been notified by the IRS that
you are currently subject to backup withholding because Awaiting TIN [_]
of underreporting interest or dividends on your tax return.
However, if after being notified by the IRS that you are
subject to backup withholding, you received another
notification from the IRS that you are no longer subject to
backup withholding, do not cross out such item (2).
SIGNATURE_________________________________ DATE________
====================================================================================================================================
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU ON THE NEW NOTES. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
================================================================================
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable payments made to me will be withheld, but that such amounts
will be refunded to me if I then provide a Taxpayer Identification Number within
sixty (60) days.
Signature_________________________________________ Date____________________
================================================================================
-11-
<PAGE>
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
================================================================================
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1 and 7)
To be completed ONLY if the New Notes issued in consideration of Old
Notes exchanged, or certificates for Old Notes in a principal amount not
surrendered for exchange are to be mailed to someone other than the
undersigned or to the undersigned at an address other than that below.
Mail to:
Name:___________________________________________________________________
(Please Print)
Address:________________________________________________________________
(Zip Code)
================================================================================
DESCRIPTION OF OLD NOTES
(See Instructions 2 and 7)
<TABLE>
<S> <C> <C> <C>
=========================================================================================================
Name(s) and Address(es) Certificate(s)
of (Attach additional signed list, if necessary)
Registered Holder(s)
(Please fill in, in blank)
- ---------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
Certificate Number(s) Aggregate Principal Principal Amount of Old
Amount of Old Notes Notes Tendered (must be
Evidenced by integral multiples of
Certificate(s) $1,000)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Total
=========================================================================================================
</TABLE>
-12-
<PAGE>
(Boxes below to be checked by Eligible Institutions only)
[_] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution______________________________________________
DTC Account Number_________________________________________________________
Transaction Code Number____________________________________________________
[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s)____________________________________________
Window Ticket Number (if any)______________________________________________
Date of Execution of Notice of Guaranteed Delivery_________________________
Name of Institution which Guaranteed Delivery______________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution______________________________________________
DTC Account Number_________________________________________________________
Transaction Code Number____________________________________________________
[_] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD NOTES
ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD NOTES FOR ITS
OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name _________________________________________________________________________
Address_________________________________________________________________________
_________________________________________________________________________
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
-13-
<PAGE>
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
WHETHER OR NOT OLD NOTES ARE BEING
PHYSICALLY TENDERED HEREBY
X __________________________________ ____________
X __________________________________ ____________
Signature(s) of Owner(s) Dated
of Authorized Signatory
Area Code and Telephone Number:____________________________________________
This box must be signed by registered holder(s) of Old Notes as their name(s)
appear(s) on certificate(s) for Old Notes hereby tendered or on a security
position listing, or by any person(s) authorized to become registered holder(s)
by endorsement and documents transmitted with this Letter of Transmittal
(including such opinions of counsel, certifications and other information as may
be required by the Company or the Trustee for the Old Notes to comply with the
restrictions on transfer applicable to the Old Notes). If signature is by an
attorney-in-fact, trustee, executor, administrator, guardian, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her full title below.
Name(s)_________________________________________________________________________
________________________________________________________________________________
(Please Print)
Capacity (full title)___________________________________________________________
Address_________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Tax Identification or Social Security Number(s)_________________________________
________________________________________________________________________________
Guarantee of Signature(s)
(See Instructions 1 and 6 to determine if required)
Authorized Signature____________________________________________________________
Name____________________________________________________________________________
Name of Firm____________________________________________________________________
Title___________________________________________________________________________
Address_________________________________________________________________________
Area Code and Telephone Number:_________________________________________________
- --------------------------------------------------------------------------------
-14-
<PAGE>
EXHIBIT 99(b)
FORM OF
NOTICE OF GUARANTEED DELIVERY
for
CASE CORPORATION
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) of Case
Corporation (the "Company") made pursuant to the Prospectus, dated _________,
1999 (as the same may be amended or supplemented from time to time, the
"Prospectus"), and the related Letter of Transmittal (the "Letter of
Transmittal") if the Letter of Transmittal and all other required documents
cannot be delivered or transmitted by facsimile transmission, mail or hand
delivery to The Bank of New York (the "Exchange Agent") on or prior to 5:00
p.m., New York City time, on the Expiration Date (as defined in the Prospectus)
or the procedures for delivery by book-entry transfer cannot be completed on a
timely basis. See "The Exchange Offer--Guaranteed Delivery Procedures" section
in the Prospectus. The term "Old Notes" means the Company's outstanding 6 1/4%
Notes due December 1, 2003, Series A.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ___________,
1999, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERED OLD NOTES MAY BE
WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE OF THE EXCHANGE OFFER.
Deliver to: The Bank of New York, Exchange Agent:
By Registered or Certified Mail: By Overnight Courier or Hand:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street
Floor 7-E Corporate Trust Services Window
New York, NY 10286 Ground Level
Attention: Reorganization Department New York, NY 10286
Attention: Reorganization Department
Facsimile:
(212) 815-6339
Confirm Telephone for Eligible Institutions:
------------------------------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID
DELIVERY.
<PAGE>
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by a "Medallion Signature Guarantor" under the instructions thereto,
such signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and
conditions set forth in the Prospectus and the Letter of Transmittal (which
together constitute the "Exchange Offer"), receipt of which are hereby
acknowledged, the aggregate principal amount of Old Notes set forth below
pursuant to the guaranteed delivery procedure described in "The Exchange Offer--
Guaranteed Delivery Procedures" section in the Prospectus and the Letter of
Transmittal.
<TABLE>
<CAPTION>
<S><C> <C>
Principal Amount of Old Notes Signature(s)___________________________________________
Tendered $________________________ _______________________________________________________
Certificate Nos. Please Print the Following Information
(if available)____________________
Name(s) of Registered Holders___________________________
Total Aggregate Principal Amount ________________________________________________________
Represented by Old Notes ________________________________________________________
Certificate(s)_____________________
Address__________________________________________________
If Old Notes will be tendered by book-entry transfer, _________________________________________________________
provide the following information: _________________________________________________________
Area Code and Telephone Number(s):_______________________
DTC Account Number____________________________________ _________________________________________________________
Dated:_____________________________________,1999
</TABLE>
GUARANTEE
(Not to be Used for Signature Guarantee)
The undersigned, a firm or entity identified in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," hereby guarantees to deliver to the Exchange Agent, at its address
set forth above, either the Old Notes tendered hereby in proper form for
transfer, or confirmation of the book-entry transfer of such Old Notes pursuant
to the procedures for book-entry transfer set forth in the Prospectus, in either
case together with a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees, and any other
documents required by the Letter of Transmittal within four business days after
the date of execution of this Notice of Guaranteed Delivery.
Name of Firm_________________________________ _________________________________
(Authorized Signature)
<PAGE>
Address Name
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Date
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Zip Code
Area Code and
Telephone number
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