EXHIBIT 1.2
VISTEON CORPORATION
VISTEON CAPITAL TRUST I
TRUST PREFERRED SECURITIES
-----------------
UNDERWRITING AGREEMENT
______________, 200__
[LEAD UNDERWRITER TO BE INSERTED]
Ladies and Gentlemen:
Visteon Capital Trust I (the "Trust"), a statutory business trust
formed under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. section 3801 et
seq.), proposes, subject to the terms and conditions stated herein, to issue and
sell to the firms named in Schedule I hereto (such firms constituting the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of _________ ___% Cumulative [Convertible]
Trust Preferred Securities of the Trust (the "Underwritten Securities") and, for
the sole purpose of covering over-allotments in connection with the sale of the
Underwritten Securities, at the option of the Underwriters, up to an additional
_________ ___% Cumulative [Convertible] Trust Preferred Securities of the Trust
(the "Option Securities"). The Underwritten Securities and the Option Securities
are herein referred to as the "Preferred Securities". [The Preferred Securities
will be convertible at the option of the holder thereof into shares of common
stock, par value $0.01 per share (the "Common Stock"), of Visteon Corporation, a
Delaware corporation (the "Company").]
The Preferred Securities will be guaranteed by the Company with respect
to distributions and amounts payable upon liquidation or redemption (the
"Guarantee"), to the extent described in the Prospectus (as defined below),
pursuant to the Guarantee Agreement (the "Guarantee Agreement") to be dated as
of the First Time of Delivery (as defined below) executed and delivered by the
Company and Bank One Trust Company, N.A., as Guarantee Trustee (the "Guarantee
Trustee") for the benefit of the holders from time to time of the Preferred
Securities. The entire proceeds from the sale of the Preferred Securities will
be combined with the entire proceeds from the sale by the Trust to the Company
of its common securities (the "Common Securities") and will be used by the Trust
to purchase $___ in aggregate principal amount of ___% Junior Subordinated
[Convertible] Debentures due ______ (the "Debentures") issued by the Company.
The Preferred Securities and the Common Securities will be issued pursuant to
the amended and restated trust agreement of the Trust, to be dated as of _____
(the "Trust
Agreement"), among the Company, as Depositor, the trustees named therein (the
"Trustees") and the holders from time to time of undivided beneficial interests
in the assets of the Trust. The Debentures will be issued pursuant to a
Subordinated Indenture to be dated as of ______ (the "Indenture") between the
Company and Bank One Trust Company, N.A., as Indenture Trustee (the "Indenture
Trustee"). [THE SHARES OF COMMON STOCK INITIALLY ISSUABLE UPON CONVERSION OF THE
DEBENTURES, AS DESCRIBED IN THE PROSPECTUS, ARE REFERRED TO HEREIN AS THE
"CONVERSION SHARES".] The Preferred Securities, the Guarantee, the Debentures
[AND THE CONVERSION SHARES] are collectively referred to herein as the
"Securities". Capitalized terms used herein without definition have the
respective meanings specified in the Prospectus.
1. Each of the Trust and the Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) registration statement on Form S-3 (File No. 333- ______) (the
"Initial Registration Statement") in respect of the Securities has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to the Initial Registration Statement, but including all
documents incorporated by reference in the prospectus contained therein, have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a "Rule
462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, and any documents incorporated by reference, no document with respect to
the Initial Registration Statement has heretofore been filed or transmitted for
filing with the Commission (other than prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, each in the
form heretofore delivered to the Representatives); and no stop order suspending
the effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule 424(a) under the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement, any post-effective amendment thereto and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective but excluding Form T-1, each as amended at the time
such part of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the Commission on or prior to the
date of this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as
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the case may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Initial Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof, including any documents incorporated by reference therein as of the
date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Securities through the
Representatives expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects, to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority
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(corporate and other) to own its properties and conduct its business as
described in the Prospectus;
(f) The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Act, is and will be treated as a
"grantor trust" for federal income tax purposes under existing law, has the
business trust power and authority to conduct its business as presently
conducted and as described in the Prospectus, and is not required to be
authorized to do business in any other jurisdiction;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Debentures have been duly authorized, and, assuming due
authorization, execution and delivery of the Indenture by the Indenture Trustee,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to the Trust against payment therefor as described in
the Prospectus, will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified under the Trust Indenture
Act and, at the Time of Delivery for such Debentures, the Indenture will
constitute a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture conforms,
and the Debentures will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented;
(i) The Preferred Securities and the Common Securities have been duly
authorized, and, assuming due authorization, execution and delivery of the Trust
Agreement by the Trustees, when executed and authenticated in accordance with
the provisions of the Trust Agreement and delivered against payment therefor as
described in the Prospectus, will be duly and validly issued and (subject to the
terms of the Trust Agreement) fully paid and non-assessable undivided beneficial
interests in the assets of the Trust, not subject to any preemptive or similar
rights; holders of Preferred Securities and Common Securities will be entitled
to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware and at the First Time of Delivery, all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; the Trust Agreement has been duly authorized and duly qualified under
the Trust Indenture Act; and, at the Time of Delivery for such Preferred
Securities and Common Securities, the Trust Agreement will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles; and the Trust Agreement conforms, and the Preferred
Securities and the Common Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented;
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(j) The Guarantee Agreement has been duly authorized and duly qualified
under the Trust Indenture Act and, as of the First Time of Delivery, will have
been duly executed and delivered by the Company. As of the First Time of
Delivery, assuming due authorization, execution and delivery of the Guarantee
Agreement by the Guarantee Trustee and upon execution and delivery by the
Company, will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and the
Guarantee Agreement conforms to the descriptions thereof contained in the
Prospectus as amended or supplemented;
(k) [THE CONVERSION SHARES HAVE BEEN DULY AUTHORIZED BY THE COMPANY AND
VALIDLY RESERVED FOR ISSUANCE BY THE COMPANY UPON CONVERSION OF THE DEBENTURES
BY ALL NECESSARY CORPORATE ACTION OF THE COMPANY, AND THE CONVERSION SHARES,
WHEN DULY ISSUED BY THE COMPANY, WILL BE VALIDLY ISSUED, FULLY PAID AND
NON-ASSESSABLE; NO HOLDER THEREOF WILL BE SUBJECT TO PERSONAL LIABILITY SOLELY
BY REASON OF BEING SUCH A HOLDER; AND THE ISSUANCE OF THE CONVERSION SHARES WILL
NOT BE SUBJECT TO PREEMPTIVE OR SIMILAR RIGHTS;]
(l) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by the
Company or the Trust of the transactions contemplated by this Agreement, except
such as have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriters;
(m) Neither the Company nor any of its subsidiaries is in violation of
its charter or bylaws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries; and, to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(o) Neither the Company nor the Trust is or, after giving effect to the
offering and sale of the Securities, will be an "investment company", as such
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(p) To the best of the knowledge of the Company, PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company and its
subsidiaries, are
5
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agree, severally and not jointly, to purchase from the Trust, at a
purchase price per Preferred Security of $___, the number of Underwritten
Securities set forth opposite the name of such Underwriter in Schedule I hereto
and (b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Option Securities as provided below, the Trust agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, at a purchase price per
Preferred Security set forth in clause (a) of this Section 2, that portion of
the number of Option Securities as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional Preferred
Securities) determined by multiplying such number of Option Securities by a
fraction, the numerator of which is the maximum number of Option Securities
which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Option Securities which all of the Underwriters are entitled
to purchase hereunder.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to _____ Option Securities, at the purchase price per
Preferred Security set forth in the paragraph above, for the sole purpose of
covering over-allotments in the sale of the Underwritten Securities. Any such
election to purchase Option Securities may be exercised only by written notice
from you to the Trust, given within a period of 30 calendar days after the date
of this Agreement, setting forth the aggregate number of Option Securities to be
purchased and the date on which such Option Securities are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined herein) or, unless you and the Trust otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Debentures, the Company agrees to pay as
compensation for the Underwriters' arranging the investment therein of such
proceeds an amount in immediately available funds of $____ per Preferred
Security purchased hereunder.
3. Upon the authorization by you of the release of the Underwritten
Securities and, if applicable, the Option Securities, the several Underwriters
propose to offer the Underwritten Securities and, if applicable, the Option
Securities for sale upon the terms and conditions described in the Prospectus.
4. (a) The Preferred Securities to be purchased by each Underwriter
hereunder will be issued by or on behalf of the Trust in one or more global
securities, which will be deposited with, or in accordance with the instructions
of, The Depository Trust Company, New York, New York ("DTC"), and registered in
the name of DTC's nominee, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire or interbank transfer to an account
specified by the Trust in immediately available funds. The time and date of such
deposit and payment shall be, with respect to the Underwritten Securities, 9:30
a.m., New York City time, on _______ or such other time and date as you and the
Trust may agree upon in writing,
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and, with respect to the Option Securities, 9:30 a.m., New York City time, on
the date specified by you in the written notice given by you of the
Underwriters' election to purchase such Option Securities, or such other time
and date as you and the Trust may agree upon in writing. Such time and date for
delivery of the Underwritten Securities are herein called the "First Time of
Delivery", such time and date for delivery of the Option Securities, if not the
First Time of Delivery, are herein called the "Second Time of Delivery", and
each such time and date for delivery are herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 6 hereof will be delivered at
the offices of _____________ (the "Closing Location") all at such Time of
Delivery. A meeting will be held at the Closing Location at ____, New York City
time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
5. Each of the Company and the Trust agrees with each of the
Underwriters:
(a) To prepare the Prospectus as amended or supplemented in relation
to the Securities in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of this Agreement and prior to the Time of Delivery which shall be disapproved
by the Representatives promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time of
Delivery and furnish the Representatives with copies thereof; to file promptly
all reports and any definitive proxy or information statements required to be
filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Securities, and during such same
period to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of such Securities, provided that in connection
therewith neither the
7
Company nor the Trust shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction; and
provided further that the expense of maintaining any such qualification more
than one year from the date of this Agreement with respect to such Securities
shall be at the expense of the Underwriters;
(c) To use best efforts to deliver as early as is reasonably
practicable on the New York Business Day next succeeding the date of this
Agreement for the Securities and from time to time, to furnish the Underwriters
in New York City with copies of the Prospectus as amended or supplemented in
such quantities as the Representatives may reasonably request and, if the
delivery of a prospectus is required at any time in connection with the offering
or sale of Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives and upon
their request to file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in Securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance;
(d) To make generally available to securityholders of the Company as
soon as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earning statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158); and
(e) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) all expenses in connection with
the qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky and Legal Investment Surveys;
(iii) any fees charged by securities
8
rating services for rating the Securities; (iv) any filing fees incident to, and
the fees and disbursements of counsel for the Underwriters in connection with,
any required review by the National Association of Securities Dealers, Inc. of
the terms of the sale of the Securities; (v) the cost of preparing the
Securities; (vi) the fees and expenses of any Trustee and any agent of any
Trustee and the fees and disbursements of counsel for any Trustee in connection
with the Indenture and the Securities; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
the discretion of the Representatives, to the condition that all representations
and warranties and other statements of the Company in or incorporated by
reference in this Agreement relating to the Securities are, at and as of each
Time of Delivery, true and correct in all material respects, the condition that
the Company shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
Securities shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof; if the
Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated the Time of Delivery,
with respect to the matters covered in paragraphs (i), (iii), (iv), (v), (vi),
(ix), (x), (xi) and (xii) of subsection (c) below and in paragraphs (i), (ii),
(iii) and (iv) of subsection (d) below as well as such other related matters as
the Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Xxxxx & Xxxxxxx, or other counsel to the Company satisfactory to
the Representatives, shall have furnished to the Representatives their written
opinion, dated the Time of Delivery for such Securities, in form satisfactory to
the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus as amended or
supplemented;
9
(ii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus as amended or supplemented, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject that, if determined adversely to the
Company or any of its subsidiaries, in the opinion of such counsel
would individually or in the aggregate have a material adverse effect
on the consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries considered as one
enterprise; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(iii) This Agreement has been duly authorized, executed and
delivered by the Company;
(iv) The Debentures have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
the Indenture; and the Debentures and the Indenture conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented;
(v) Each of the Indenture, the Guarantee Agreement and the Trust
Agreement have been duly authorized, executed and delivered by the
Company, constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms,
and has been duly qualified under the Trust Indenture Act;
(vi) [THE CONVERSION SHARES HAVE BEEN DULY AUTHORIZED BY THE COMPANY
AND VALIDLY RESERVED FOR ISSUANCE BY THE COMPANY UPON CONVERSION OF THE
DEBENTURES BY ALL NECESSARY CORPORATE ACTION OF THE COMPANY, AND THE
CONVERSION SHARES, WHEN DULY ISSUED BY THE COMPANY, WILL BE VALIDLY
ISSUED, FULLY PAID AND NON-ASSESSABLE; NO HOLDER THEREOF WILL BE
SUBJECT TO PERSONAL LIABILITY SOLELY BY REASON OF BEING SUCH A HOLDER;
AND THE ISSUANCE OF THE CONVERSION SHARES WILL NOT BE SUBJECT TO
PREEMPTIVE OR SIMILAR RIGHTS;]
(vii) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture,
the Trust Agreement, the Guarantee Agreement, this Agreement and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument (in each case material to the Company and its subsidiaries
considered as an enterprise) known to such counsel to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the charter or bylaws of
the Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
10
(viii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture or Guarantee Agreement, except such as have
been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state or foreign securities
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(ix) The statements set forth in the Prospectus as amended or
supplemented under the captions ["DESCRIPTION OF TRUST PREFERRED
SECURITIES," "DESCRIPTION OF GUARANTEE," "RELATIONSHIP AMONG THE TRUST
PREFERRED SECURITIES, THE NOTES AND THE GUARANTEE" AND "DESCRIPTION OF
NOTES"] insofar as they purport to constitute a summary of the terms of
the Securities, under the caption ["FEDERAL INCOME TAX CONSIDERATIONS"]
and under the captions ["PLAN OF DISTRIBUTION" AND "UNDERWRITING,"]
insofar as they relate to legal matters or purport to describe the
provisions of the documents referred to therein, are accurate
descriptions in all material respects of such terms and such matters
and fairly present the information required or purported to be set
forth therein;
(x) Neither the Company nor the Trust is an "investment company", as
such term is defined in the Investment Company Act;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and other
financial and accounting information included therein or omitted
therefrom, as to which such counsel need express no opinion), when they
were filed with the Commission, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents, when
they were so filed, as the case may be, included an untrue statement of
a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading;
and
(xii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Securities (other
than the financial statements and other financial information included
therein or omitted therefrom, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder;
Such opinion shall also state that, while such counsel has not verified, is not
passing upon and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus or documents incorporated therein by reference (except to the extent
expressly provided in paragraph (viii) above), such counsel has generally
reviewed and discussed such statements with certain officers and representatives
of the Company
11
and with the Company's independent accountants, and with the Underwriters and
their counsel, and in the course of such review and discussions no facts came to
the attention of such counsel that lead such counsel to believe (A) that, as of
its effective date, the Registration Statement or any further amendment thereto
made by the Company prior to the Time of Delivery or any document incorporated
therein by reference at such time (other than financial statements and other
financial and accounting information included therein or omitted therefrom, as
to which such counsel need express no assurance) contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) that,
as of the date thereof or at the Time of Delivery, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery or any document incorporated therein by reference
at such time (other than the financial statements and other financial and
accounting information included therein or omitted therefrom, as to which such
counsel need express no assurance) included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. Such opinion may be made subject to the qualification
that the enforceability of the terms of the Indenture, the Guarantee Agreement
and the Securities may be limited by the effect of any applicable bankruptcy,
fraudulent conveyance, insolvency, moratorium, reorganization or other similar
laws affecting creditors' rights generally and to the discretionary nature of
specific performance, injunctive relief and other equitable remedies, including
the appointment of a receiver, and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
Such counsel may also state that certain provisions of the Indenture,
the Trust Agreement and the Securities may not be enforceable in whole or in
part, but that the inclusion of such provisions does not affect the validity of
the Indenture, the Guarantee Agreement or the Securities taken together and each
of the Indenture, the Guarantee Agreement and the Securities contains adequate
provisions for enforcing payment of the obligations evidenced thereby and for
the practical realization of the benefits intended to be provided thereby. Such
counsel may rely upon certificates of public officials and officers of the
Company and may limit such opinion to matters governed by the internal laws of
the State of Michigan, applicable federal laws and the General Corporation Law
of the State of Delaware;
(d) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for
the Trust, or other counsel to the Trust satisfactory to the Representatives,
shall have furnished to you their written opinion, dated such Time of Delivery,
in form and substance reasonably satisfactory to you, to the effect that:
(i) The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Act and, under the
Trust Agreement and the Delaware Act, has the trust power and authority
to conduct its business as presently conducted as described in the
Prospectus;
(ii) Assuming due authorization, execution and delivery of the Trust
Agreement by the Company and the Trustees, the Trust Agreement is a
legal, valid and legally binding agreement of the Company and the
Trustees, and is enforceable against the Company and the Trustees, in
accordance with its terms, subject to the effect of
12
(i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating
to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable
public policy on the enforceability of provisions relating to
indemnification or contribution;
(iii) Under the Trust Agreement and the Delaware Act, the execution
and delivery of this Agreement by the Trust, and the performance by the
Trust of its obligations hereunder, have been duly authorized by all
requisite trust action on the part of the Trust;
(iv) The Preferred Securities have been duly authorized by the Trust
Agreement and are duly and validly issued and, subject to the
qualifications set forth in paragraph (v) below, are fully paid and
nonassessable undivided beneficial interests in the assets of the
Trust;
(v) The Holders of Preferred Securities, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note
that the Holders of Preferred Securities may be obligated, pursuant to
the Trust Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers or exchanges of Preferred Securities certificates and the
issuance of replacement Preferred Securities certificates, and (b)
provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and remedies
under the Trust Agreement; and
(vi) Under the Trust Agreement and the Delaware Act, the issuance of
the Preferred Securities is not subject to preemptive rights.
(e) On the date of this Agreement and at the Time of Delivery for
such Securities, the independent accountants of the Company who have certified
the financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
the Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the Commission
containing financial statements and incorporated by reference in the
Registration Statement, if the date of such report is later than such effective
date, a letter dated the date of this Agreement, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto and, with
respect to such letter dated such Time of Delivery, as to such other matters as
the Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) Since the respective dates as of which information is given in
the Prospectus as amended prior to the date hereof, there shall not have been
any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended prior to
13
the date hereof, the effect of which, in any such case, is in the judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the Prospectus;
(g) On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities or preferred stock;
(h) On or after the date hereof, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date hereof; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Securities a certificate or
certificates of officers of the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Company herein at
and as of such Time of Delivery, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (e) of this Section and as to
such other matters as the Representatives may reasonably request.
8. (a) The Company and the Trust, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company
14
and the Trust shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities; and provided
further that the Company and the Trust shall not be liable to any Underwriter or
any person controlling such Underwriter under the indemnity agreement in this
subsection (a) with respect to any such documents to the extent that any such
loss, claim, damage or liability of such Underwriter or controlling person
results from the fact that such Underwriter sold Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference), whichever is most
recent, if the Company has previously furnished copies thereof to such
Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
and the Trust against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company and the Trust for any legal or other expenses reasonably incurred by the
Company or the Trust in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of
15
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. In any such action, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
shall have agreed in writing to pay such fees and expenses, (ii) the
indemnifying party shall have failed to assume the defense of such proceeding
and employ counsel reasonably satisfactory to the indemnified person in such
proceeding or (iii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and the representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to local counsel)
for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the
Representatives in the case of parties indemnified pursuant to subsection (a)
and by the Company in the case of parties indemnified pursuant to subsection
(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action 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 the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
16
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, including, with respect to any such
Underwriter, the extent to which such losses, claims, damages or liabilities (or
actions in respect thereof) result from the fact that such Underwriter sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus or of the Prospectus
as then amended or supplemented (excluding documents incorporated by reference),
whichever is most recent, if the Company has previously furnished copies thereof
to such Underwriter. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Securities, or the Company notifies the Representatives that it has so
arranged for the purchase of such Securities, the Representatives or the Company
shall have the right to postpone the Time of Delivery for such Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other
17
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party hereto.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Securities which remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Securities, then
the Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of Securities
which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Securities, as referred to
in subsection (b) above, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter with
respect to the Securities except as provided in Sections 6 and 8 hereof; but, if
for any other reason Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Securities, but the Company shall then be under no further
liability to any Underwriter with respect to such Securities except as provided
in Sections 6 and 8 hereof.
18
12. In all dealings hereunder, the Representatives of the Underwriters
shall act on behalf of each of such Underwriters, and the parties hereto shall
be entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by such Representatives jointly.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to __________________; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement: Attention: General Counsel;
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Trust, the Company and, to the extent provided
in Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein:
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business; and "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law or
executive order to close.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
19
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof.
Very truly yours,
VISTEON CAPITAL TRUST I
By: Visteon Corporation,
as sponsor
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
VISTEON CORPORATION
By:
--------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Accepted as of the date hereof:
[INSERT LEAD UNDERWRITER]
By:
-----------------------------------------
20
SCHEDULE I
PRINCIPAL AMOUNT
OF DESIGNATED
SECURITIES TO BE
UNDERWRITER PURCHASES
----------- ---------
[UNDERWRITING GROUP TO BE INSERTED] $
--------------------------
Total.................................$
==========================
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder, and the
statement in each Registration Statement in answer to Item 10 of Form
S-3 is accurate insofar as it relates to them;
(ii) In their opinion, the audited consolidated financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Company's Annual Report on Form 10-K most recently
filed with the Commission and covered by their report included therein
(the "audited financials") comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the published rules and regulations under the
Act or the Exchange Act, as applicable;
(iii) On the basis of limited procedures, not constituting an audit,
which have been carried out through a specified date not more than two
business days prior to the date of each such letter,* including (1)
performing the procedures specified by the American Institute of
Certified Public Accountants for are view of interim financial
information as described in Statements on Auditing Standards No. 71,
"Interim Financial Information," on the unaudited consolidated
financial statements of the Company and its subsidiaries included in
the Company's Quarterly Reports on Form 10-Q filed with the Commission
from the beginning of the Company's fiscal year through the date of
such letter (the "quarterly financials"), (2) a reading of the minutes
of the meetings of the Board of Directors, and stockholders of the
Company since the date of the audited financials, (3) inquiries of
certain officials of the Company responsible for financial and
accounting matters as to transactions and events subsequent to the date
of the audited financials, and (4) such other procedures and inquiries
as may be described in each such letter, nothing has come to their
attention which has caused them to believe that:
(A) Any material modifications should be made to the quarterly
financials for them to be in conformity with generally accepted
accounting principles; or
(B) The quarterly financials do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations; or
(C) As of the last day of the month immediately preceding the
date of such letter, unless such day is less than five business days
prior to the date of such letter, in which case as of the last day
of the second month immediately preceding the date of such letter
(or such other date as shall be mutually agreed upon by the Company
and the Representative), there was any change with respect to the
Company and its subsidiaries in the capital stock other than changes
resulting
from acquisitions or issuances of shares relating to employee
benefit plans or any net change in aggregate debt as of the date of
its most recent quarterly financial statements, as compared in each
case with the corresponding amounts of outstanding debt in the
balance sheets of the Company and each of such subsidiaries as of
the date of their most recent quarterly financial statements,
except, in all instances, for changes which the most recent report
filed by the Company or any such subsidiary with the Commission
containing financial statements disclosed have occurred or may occur
or which are described in such letter; and
(iv) They have performed certain specified procedures, including
comparisons with certain specified accounting records of the Company
and its subsidiaries, with respect to certain items of information
included in each Registration Statement, in the reports filed with the
Commission from the beginning of the Company's fiscal year through the
date of such letter* and, in the case of each letter to be delivered
pursuant to Section 7(d) of the Underwriting Agreement, in the
Prospectus as amended or supplemented through the date of such letter,
and have found such items to be in agreement with such records.
(v) Based on reading of any unaudited pro forma consolidated
condensed financial statements included in or incorporated by reference
in the Prospectus and inquiry of officials who have responsibility for
financial and accounting matters about the basis for the determination
of pro forma adjustments, nothing has come to their attention that the
unaudited pro forma condensed consolidated financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of those statements.
* In the case of letters delivered pursuant to Section 7(e) of the Underwriting
Agreement, such procedures will be carried out through a specified date not more
than two business days prior to the effective date of the Registration Statement
or not more than two business days prior to the most recent report filed with
the Commission containing financial statements, if the date of such report is
later than such effective date.
2
