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EXHIBIT 1
FORD MOTOR COMPANY
Debt Securities
Underwriting Agreement
[________], 199_
[_________________]
[_________________]
[_________________]
Ladies and Gentlemen:
Ford Motor Company, a Delaware corporation (the "Company"),
proposes from time to time to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firm or firms
named in Schedule I to the applicable Pricing Agreement (such firm or firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of the Company's debt securities (the
"Securities") specified in Schedule II to such Pricing Agreement (such
Securities, as so specified in such Pricing Agreement, being herein sometimes
referred to as the "Designated Securities"), less the principal amount of
Designated Securities covered by Delayed Delivery Contracts, if any, as
provided in Section 3 hereof and as may be specified in Schedule II to such
Pricing Agreement (such Designated Securities to be covered by Delayed Delivery
Contracts, as so specified in such Pricing Agreement, being herein sometimes
referred to as "Contract Securities" and the Designated Securities to be
purchased by the Underwriters (after giving effect to the deduction, if any,
for Contract Securities) being herein sometimes referred to as "Underwriters'
Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture dated as of February 15, 1992 (such indenture,
together with any indentures supplemental thereto, being herein referred to as
the "Indenture") between the Company and The Bank of New York, as Trustee (the
"Trustee").
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom
[___________________] will act as representative (the "Representative"). The
term "Representative" also refers to
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[________________] when it alone constitutes the Underwriters. This
Underwriting Agreement shall not be construed as an obligation of the Company
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and sell any
of the Securities and the obligation of any of the Underwriters to purchase any
of the Securities shall be evidenced by the Pricing Agreement with respect to
the Designated Securities specified therein. Each Pricing Agreement shall
state the aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the principal amount of such Designated Securities
to be purchased by each Underwriter, whether any of such Designated Securities
shall be covered by Delayed Delivery Contracts (as defined in Section 3 hereof)
and the commission payable to the Underwriters with respect thereto, and shall
set forth the date, time and manner of delivery of such Designated Securities
and payment therefor. The Pricing Agreement shall also specify (to the extent
not set forth in the registration statement and the prospectus with respect
thereto and the Indenture) the terms of such Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts) and may be evidenced by an exchange of facsimile transmissions.
Each Pricing Agreement shall be deemed to be an agreement by the Company and
the Underwriters to be bound by the terms of this Agreement. The obligations
of the Underwriters under this Agreement and each Pricing Agreement shall be
several and not joint.
2. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement (No. 33-64247) on Form S-3
in respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"), in the form heretofore
delivered to the Representative, and such registration statement in
such form has been declared effective by the Commission; and no stop
order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in
such registration statement being hereinafter called the "Preliminary
Prospectus", the various parts of such registration statement,
including all exhibits thereto but excluding Form T-1, and, if
applicable, including information ("Rule 430A Information"), if any,
deemed to be a part of such registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act of 1933,
as amended (the "Act"), each as amended at the time such part became
effective, being hereinafter collectively called the "Registration
Statement", and the prospectus relating to the Securities, in the form
in which it has most recently been filed, or mailed for filing, with
the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; and any reference herein to the
Registration Statement, to the Preliminary Prospectus or the
Prospectus shall be deemed to include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of
the effective date of the Registration Statement or the date of such
Preliminary
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Prospectus or Prospectus, as the case may be, and any reference herein
to any amendment or supplement to the Registration Statement, the
Preliminary Prospectus or the Prospectus shall be deemed to include
any documents filed after the effective date of the Registration
Statement or 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 so incorporated by reference; and any
reference to the phrase "Prospectus as amended or supplemented" shall
be deemed to refer to the Prospectus as amended or supplemented to set
forth any Rule 430A Information or to describe the offering of a
particular series of Designated Securities in the form in which it is
first filed, or mailed for filing, with the Commission pursuant to
Rule 424 under the Act, including any documents incorporated by
reference therein as of the date of such filing or mailing);
(b) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and any further
documents so filed and incorporated by reference, when they are filed
with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder;
(c) The Registration Statement and the Prospectus
conform, and any amendments or supplements thereto will conform, in
all material respects to the requirements of the Act, the Exchange
Act, where applicable, and the rules and regulations of the Commission
under the Act or the Exchange Act, as applicable, and do not and will
not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this
representation and warranty shall not apply to any statement or
omission made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representative expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
when the Registration Statement became effective, the Indenture was,
and at all times thereafter the Indenture has been and will be, duly
qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and when the Registration Statement became
effective the Indenture conformed, and at all times thereafter the
Indenture has conformed and will conform, in all material respects to
the requirements of the Trust Indenture Act;
(d) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority and has all
licenses, permits, orders and other governmental and regulatory
approvals, to own or lease its properties and conduct its business in
the jurisdictions in which such business is transacted as described in
the Prospectus, with
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only such exceptions as are not material to the business of the
Company and its subsidiaries considered as a whole;
(e) This Agreement has been duly authorized, executed and
delivered on behalf of the Company; upon execution and delivery of
each Pricing Agreement by the Company, such Pricing Agreement shall
have been duly authorized, executed and delivered on behalf of the
Company and, when executed and delivered by the Representative, will
be a valid and legally binding agreement of the Company in accordance
with its terms; on the date of each Pricing Agreement with respect to
the Designated Securities covered thereby, such Designated Securities
shall be duly authorized, and, when such Designated Securities are
authenticated as contemplated by the Indenture and issued and
delivered in accordance with this Agreement and the Pricing Agreement
applicable to such Designated Securities and, in the case of any
Contract Securities, pursuant to Delayed Delivery Contracts applicable
to such Contract Securities, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company in accordance with their
terms and will be entitled to the benefits provided by the Indenture,
which will be substantially in the form included as an exhibit to the
Registration Statement; and the Indenture has been duly authorized by
the Company and, as executed and delivered by the Company and the
Trustee, constitutes a valid and legally binding instrument of the
Company in accordance with its terms except as the same may be limited
by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
(f) In the event that any of the Securities are purchased
pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized by the Company and, when executed
and delivered on behalf of the Company and duly authorized, executed
and delivered on behalf of the purchaser thereunder, will constitute a
valid and legally binding agreement of the Company in accordance with
its terms;
(g) There is no consent, approval, authorization, order,
registration or qualification of or with any court or any regulatory
authority or other governmental body having jurisdiction over the
Company which is required for, and the absence of which would
materially affect, the issue and sale of the Designated Securities as
contemplated by this Agreement or, in the case of any Contract
Securities, Delayed Delivery Contracts with respect to such Contract
Securities, or the execution, delivery or performance of the
Indenture, except the registration under the Act of the Securities,
the qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the securities or Blue Sky
laws of any jurisdiction in connection with the public offering of the
Securities by the Underwriters; and
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(h) Coopers & Xxxxxxx L.L.P. ("Coopers & Xxxxxxx"), who
have certified certain of the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented, are, to the best of the
knowledge of the Company, independent certified public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Securities and authorization by the Representative
of the release of the Underwriters' Securities, the several Underwriters
propose to offer the Underwriters' Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented, and, in
connection with such offer or the sale of such Designated Securities, will use
the Prospectus as amended or supplemented, together with any amendment or
supplement thereto, that specifically describes such Designated Securities, in
the form which has been most recently distributed to them by the Company, only
as permitted or contemplated thereby, and will offer and sell such Designated
Securities only as permitted by the Act and the applicable securities laws or
regulations of any jurisdiction. The Representative will use its best efforts
to inform the Company when it has authorized the sale of the Underwriters'
Securities to the public and when it has been advised that such Underwriters'
Securities have been sold by the several Underwriters within a reasonable
period of time after such sales are completed.
The Company may specify in Schedule II to the Pricing
Agreement applicable to any Designated Securities that the Underwriters are
authorized to solicit offers to purchase Designated Securities from the Company
pursuant to delayed delivery contracts (herein called "Delayed Delivery
Contracts"), substantially in the form of Annex II attached hereto but with
such changes therein as the Representative and the Company may authorize or
approve. If so specified, the Underwriters will endeavor to make such
arrangements, and as compensation therefor the Company will pay to the
Representative, for the accounts of the Underwriters, at the Time of Delivery
(as defined in Section 4 hereof), such commission, if any, as may be set forth
in such Pricing Agreement. Delayed Delivery Contracts, if any, shall be with
institutional investors of the types described in the Prospectus as amended or
supplemented and subject to other conditions therein set forth. The Company
will enter into a Delayed Delivery Contract in each case where the Underwriters
have arranged for such a contract and the Company has advised the
Representative of its approval of the proposed sale of Contract Securities to
the purchaser thereunder; provided, however, that the minimum principal amount
of Contract Securities covered by any Delayed Delivery Contract (or the
aggregate amount under Delayed Delivery Contracts with related purchasers)
shall be $1,000,000 and the aggregate principal amount of all Contract
Securities shall not exceed the maximum aggregate principal amount specified in
Schedule II to the Pricing Agreement with respect to the Designated Securities
specified therein, unless the Company shall otherwise agree in writing.
However, if the aggregate principal amount of Contract Securities requested for
delayed delivery is less than the minimum aggregate principal amount specified
in such Schedule II, the Company will have the right to reject all requests.
Each Underwriter to whom Contract Securities have been attributed will make
reasonable efforts to
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assist the Company in obtaining performance by the purchaser in accordance with
the terms of the Delayed Delivery Contract covering such Contract Securities,
but no Underwriter will have any liability in respect of the validity or
performance of any Delayed Delivery Contract.
The Company will notify the Representative not later than 3:30
p.m., New York City time, on the third business day preceding the Time of
Delivery specified in the applicable Pricing Agreement (or such other time and
date as the Representative and the Company may agree upon in writing), such
notice to be confirmed in writing prior to such Time of Delivery, of the
principal amount of Contract Securities, and the name of, and principal amount
thereof to be purchased by, each purchaser. The principal amount of Contract
Securities to be deducted from the principal amount of Designated Securities to
be purchased by each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Securities shall be, in each case, the
principal amount of Contract Securities of which the Company has been advised
in writing prior to the time of Delivery by the Representative as having been
attributed to such Underwriter, provided that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted shall be, in each
case, that proportion of Contract Securities which the principal amount of
Designated Securities to be purchased by such Underwriter under such Pricing
Agreement bears to the total principal amount of the Designated Securities
(rounded, as the Representative may determine, to the nearest $1,000 principal
amount) and that, subject to Section 8 hereof, the total principal amount of
Underwriters' Securities to be purchased by all of the Underwriters pursuant to
such Pricing Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement less the principal
amount of the Contract Securities.
4. Underwriters' Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, shall be
delivered (to the extent practicable) in definitive form or in the form of one
or more global securities, as specified in such Pricing Agreement, by the
Company to the Representative, for the account of such Underwriter, against
payment of the purchase price therefor by such Underwriter or on its behalf, by
certified or bank cashier's check or checks, payable to the order of the
Company, or by wire or internal bank transfer to an account specified by the
Company, in the funds specified in such Pricing Agreement, all at the place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representative and the Company may agree upon in writing,
the time and date of such delivery and payment being herein called the "Time of
Delivery". If any Underwriters' Securities are to be delivered in definitive
form, the Underwriters' Securities so delivered shall be in such authorized
denominations and shall be registered in such name or names as the
Representative shall request in writing at least 48 hours prior to the Time of
Delivery. For the purpose of expediting the checking of such Securities by the
Representative, the Company agrees to make such Securities available to the
Representative not later than 9:00 a.m., New York City time, on the business
day next preceding the Time of Delivery at the offices of the Representative
designated in Section 11 hereof. If any Underwriters' Securities are to be
delivered in global form, unless otherwise provided in the applicable Pricing
Agreement, the
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Underwriters' Securities so delivered shall be deposited with, or on behalf of,
the Depository Trust Company (the "Depository") and registered in the name of
the Depository's nominee.
Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to the Representative for
the accounts of the Underwriters a check payable to the order of the
Representative in the amount of any compensation payable by the Company to the
Underwriters in respect of any Delayed Delivery Contracts as provided in
Section 3 hereof and in the Pricing Agreement relating to such Securities, or
such amount may be deducted from the amounts delivered pursuant to the
preceding paragraph.
5. The Company agrees with each of the Underwriters of
any Designated Securities:
(a) To make no amendment or any supplement to the
Registration Statement or the Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such Designated
Securities and prior to the Time of Delivery for such Designated
Securities prior to having furnished the Representative with a copy of
the proposed form thereof and given the Representative a reasonable
opportunity to review the same; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus as
amended or supplemented and for so long as the delivery of a
prospectus is required by law in connection with the offering or sale
of such Designated Securities, and during such same period to advise
the Representative, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or become effective or any supplement to the Prospectus as amended or
supplemented or any amended Prospectus has been filed or mailed for
filing, of the issuance of any stop order by the Commission, of the
suspension of the qualification of such Designated Securities for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus as amended or supplemented or for
additional information; and, in the event of the issuance of any such
stop order or of any order preventing or suspending the use of any
prospectus relating to such Designated Securities or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify such
Designated Securities for offering and sale under the securities laws
of such states as the Representative may request and to continue such
qualifications in effect so long as necessary under such laws for the
distribution of such Designated Securities, provided that, in
connection therewith the Company shall not be required to qualify as a
foreign corporation to do business, or to file a general consent to
service of process in any jurisdiction, and provided further that
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the expense of maintaining any such qualification more than one year
from the date of the Pricing Agreement with respect to such Designated
Securities shall be at the expense of the Underwriters;
(c) To furnish the Underwriters with copies of the
Registration Statement (excluding exhibits) and copies of the
Prospectus as amended or supplemented in such quantities as the
Representative may from time to time reasonably request; and if,
before a period of six months shall have elapsed after the date of the
Pricing Agreement applicable to such Designated Securities and the
delivery of a prospectus shall be at the time required by law in
connection with sales of any such Designated Securities, either (i)
any event shall have occurred as a result of which the Prospectus as
amended or supplemented would include any 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, not misleading, or (ii) for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus as amended or supplemented or to file under the Exchange
Act any document incorporated by reference into the Prospectus as
amended or supplemented in order to comply with the Act or the
Exchange Act, to notify the Representative and upon its request to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer participating in the distribution of
such Designated Securities as many copies as the Representative may
from time to time reasonably request of an amendment or a supplement
to the Prospectus as amended or supplemented which will correct such
statement or omission or effect such compliance; and in case any
Underwriter is required by law to deliver a prospectus in connection
with sales of any of such Designated Securities at any time six months
or more after the date of such Pricing Agreement, upon the request of
the Representative, but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many copies as the Representative
may request of an amended or supplemented prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its security holders
as soon as practicable, but in any event no later than eighteen months
after the effective date of the Registration Statement (as such date
is defined in Rule 158(c) under the Act), an earning statement of the
Company and its consolidated subsidiaries complying with Rule 158
under the Act and covering a period of at least twelve consecutive
months beginning after such effective date;
(e) During a period of five years from the date of the
Pricing Agreement applicable to such Designated Securities, to furnish
to the Representative copies of all reports or other communications
(financial or other) furnished to security holders, and to deliver to
the Representative, during such same period, (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which any of the Securities or any class of securities of the Company
is listed, and (ii) such additional information concerning the
business and financial condition of the Company as the Representative
may from time to
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time reasonably request (such financial statements to be on a
consolidated basis to the extent that the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its security
holders generally or to the Commission);
(f) To pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder, including
the cost of all qualifications of such Designated Securities under
state securities laws (including reasonable fees and disbursements of
counsel to the Underwriters in connection with such qualifications and
with legal investment surveys), any fees of rating agencies with
respect to the Securities and the cost of printing this Agreement,
each Pricing Agreement and any Delayed Delivery Contracts (it being
understood that, except as provided in this subsection (f) and in
Section 10 hereof, the Underwriters will pay all of their own costs
and expenses, including the cost of printing any Agreement Among
Underwriters, the fees of their counsel, transfer taxes on resale of
any of such Designated Securities by them and any advertising expenses
connected with any offers that they may make); and
(g) On any date on which the Company shall release to the
general public interim financial information included in or derived
from the its consolidated statement of income for a period ending on
the last day of the preceding calendar quarter, the Company shall
cause Coopers & Xxxxxxx forthwith to furnish the Representative a
letter, dated no earlier than two days prior to the date of such
release, substantially in the form of Annex III hereto.
6. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement applicable to such Designated Securities
shall be subject, in the discretion of the Representative, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that the Company shall have performed all of
its obligations hereunder theretofore to be performed, in all material
respects, and the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with or otherwise satisfied;
(b) X.X. Xxxxxxxxx, Esq., an Assistant General Counsel
and Secretary of the Company, or other counsel satisfactory to the
Representative in its reasonable judgment, shall have furnished to the
Representative his written opinion, dated the Time of Delivery for
such Designated Securities, in form satisfactory to the Representative
in its reasonable judgment, 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,
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with corporate power under the laws of such State to own its
properties and conduct its business as described in the Prospectus as
amended or supplemented, and is duly qualified and in good standing to
do business as a foreign corporation in the States of Michigan and
Ohio;
(ii) This Agreement and the Pricing Agreement applicable
to the Designated Securities each have been duly authorized, executed
and delivered by the Company;
(iii) The Indenture has been duly authorized,
executed and delivered by, and constitutes a valid and binding
instrument of, the Company and has been duly qualified under the
Trust Indenture Act;
(iv) In the event that any of the Designated
Securities are to be purchased pursuant to Delayed Delivery
Contracts, each Delayed Delivery Contract which has been executed by
the Company, has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
purchaser thereunder, is a valid and binding agreement of the Company;
(v) The Designated Securities have been duly
authorized by the Company; the Underwriters' Securities,
assuming due authentication by the Trustee, have been duly executed,
authenticated, issued and delivered and constitute valid and binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Contract Securities, if any, when duly executed and
authenticated as provided in the Indenture and issued and delivered in
accordance with the Delayed Delivery Contracts, if any, will
constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture;
(vi) The issue and sale of the Designated Securities and
the compliance by the Company with all provisions of the
Designated Securities, the Indenture, this Agreement, the Pricing
Agreement applicable to the Designated Securities and each of the
Delayed Delivery Contracts, if any, will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a
default under (in each case material to the Company and its
subsidiaries considered as a whole), or result in the creation or
imposition of any lien, charge or encumbrance (in each case material
to the Company and its subsidiaries considered as a whole) upon any of
the property or assets of the Company pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or other similar agreement or instrument known to
such counsel under which the Company is a debtor or a guarantor, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company;
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(vii) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and other accounting information contained or
incorporated by reference 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 Exchange Act and the rules and regulations of the
Commission thereunder;
(viii) The Registration Statement has become
effective under the Act and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission; the
Registration Statement and the Prospectus as amended or supplemented
and any further amendments and supplements thereto made by the Company
prior to the Time of Delivery for the Designated Securities (other
than Exhibit 12 to the Registration Statement and the financial
statements and other accounting information contained in the
Registration Statement or the Prospectus as amended or supplemented or
any further amendments or supplements thereto, 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 rules
and regulations thereunder; and the statements in the Registration
Statement and the Prospectus as amended or supplemented in the
sections thereof describing the Securities and the Designated
Securities are accurate and fairly present the information required or
purported to be shown;
(ix) Such counsel believes that neither the Registration
Statement (other than Exhibit 12 thereto and the financial
statements and other accounting information contained therein or
omitted therefrom, as to which such counsel need express no opinion)
nor any amendment thereto, at the time the same became effective,
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;
(x) Such counsel believes that on the date of the
Prospectus as amended or supplemented relating to the
Designated Securities and at the Time of Delivery the Prospectus as
amended or supplemented (other than the financial statements and other
accounting information contained therein or omitted therefrom, as to
which such counsel need express no opinion) together with any
supplement thereto, does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
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(xi) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which is not filed or incorporated by reference or
described as required; and
(xii) Such counsel does not know of any legal or
governmental proceeding pending to which the Company is a party
or of which any property of the Company is the subject, and no such
proceedings are known by such counsel to be threatened or contemplated
by governmental authorities or threatened by others, other than as set
forth or contemplated in the Prospectus as amended or supplemented and
other than such proceedings which, in his opinion, will not have a
material adverse effect upon the general affairs, financial position,
net worth or results of operations (on an annual basis) of the Company
and its subsidiaries considered as a whole.
Such opinion may be made subject to the qualification that the enforceability
of the terms of the Indenture, the Delayed Delivery Contracts, if any, and the
Designated Securities may be limited by bankruptcy, insolvency, reorganization
or other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law;
(c) Shearman & Sterling, counsel to the Underwriters, shall have
furnished to the Representative its written opinion, dated the Time of
Delivery for such Designated Securities, in form satisfactory to the
Representative in its reasonable judgment, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State
of Delaware and has the corporate power under the laws of such State
to own its properties and carry on its business as set forth in the
Prospectus as amended or supplemented;
(ii) The Indenture has been duly qualified under the
Trust Indenture Act, has been duly authorized, validly executed
and delivered by the Company and constitutes a valid and binding
obligation of the Company;
(iii) The Designated Securities have been duly authorized
by the Company; the Underwriters' Securities, when executed by
the Company and authenticated by the Trustee in accordance with the
Indenture and delivered and paid for as provided in this Agreement and
the applicable Pricing Agreement, will have been duly issued under the
Indenture and will constitute valid and binding obligations of the
Company entitled to the benefits provided
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13
by the Indenture; and any Contract Securities (if executed by the
Company and authenticated by the Trustee as aforesaid), when delivered
and paid for as provided in the Delayed Delivery Contracts, will have
been duly issued under the Indenture and will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture;
(iv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and other accounting information contained or incorporated
by reference therein or omitted therefrom, as to which such counsel
need express no opinion), when they were filed with the Commission,
appeared on their face to be appropriately responsive in all material
respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(v) The Registration Statement has become effective
under the Act, is still effective, and to the best knowledge of
such counsel no proceedings for a stop order are pending or
threatened;
(vi) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments or supplements
thereto made by the Company prior to the Time of Delivery for the
Designated Securities (other than Exhibit 12 to the Registration
Statement and the financial statements and other accounting
information contained in the Registration Statement or the
Prospectus as amended or supplemented or any further amendments or
supplements thereto, or omitted therefrom, as to which such counsel
need express no opinion) appear on their face to be appropriately
responsive in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder;
(vii) The Indenture and the Designated Securities conform
as to legal matters with the descriptions thereof contained in
the Registration Statement and the Prospectus as amended or
supplemented; and
(viii) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized,
executed and delivered by the Company.
Such opinion shall also state that, while the such counsel have not verified,
and are not passing upon and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, they have generally reviewed and
discussed such statements with the certain officers and employees of the
Company, with their counsel and auditors and with the representatives of the
Underwriters, and in the course of such review and discussions, no facts came
to the attention of such counsel which lead them to believe that the
Registration Statement,
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14
at the time that the Registration Statement became effective (other than the
financial statements and other accounting information contained therein,
or omitted therefrom, as to which they have not been requested to comment),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of the date
thereof (other than the financial statements and other accounting information
contained therein, or omitted therefrom, as to which they have not been
requested to comment), included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. Such opinion may be made subject to the qualification that the
enforceability of the terms of the Indenture and the Designated Securities may
be limited by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law;
(d) (i) At the time of execution of the Pricing Agreement for
such Designated Securities, Coopers & Xxxxxxx shall have furnished to the
Representative a letter dated the date of such Pricing Agreement and (ii)
at the Time of Delivery for such Designated Securities, Coopers & Xxxxxxx shall
have furnished to the Representative a letter dated such Time of Delivery,
in each case in form satisfactory to the Representative, in its reasonable
judgment, to the effect set forth in Annex IV hereto and, with respect to such
letter dated such Time of Delivery, as to such other matters as the
Representative may reasonably request as shall be referred to in Schedule II
to the Pricing Agreement applicable to such Designated Securities;
(e) Since the respective dates as of which information is
given in the Prospectus as amended or supplemented, there shall not have
occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting particularly the business
or assets of the Company and its subsidiaries considered as a whole, or any
material adverse change in the financial position or results of operations of
the Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, which in
any such case makes it impracticable or inadvisable in the reasonable judgment
of the Representative to proceed with the public offering or the delivery of
the Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(f) Since the time of execution of the Pricing Agreement
applicable to the Designated Securities, the United States shall not have
become engaged in hostilities which have resulted in the declaration of a
national emergency or a declaration of war, which makes it impracticable or
inadvisable in the reasonable judgment of the Representative to proceed with
the public offering or the delivery of the Designated
15
15
Securities on the terms and in the manner contemplated in the Prospectus
as amended or supplemented; and
(g) The Company shall have furnished or caused to be furnished
to the Representative, at the Time of Delivery for such
Designated Securities, a certificate in form satisfactory to the
Representative in its reasonable judgment to the effect that: (i) the
representations and warranties of the Company contained in this Agreement
are true and correct on and as of such Time of Delivery as though made at
and as of such Time of Delivery; (ii) the Company has duly performed, in
all material respects, all obligations required to be performed by it
pursuant to the terms of this Agreement at or prior to such Time of
Delivery; (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose
has been initiated or, to the knowledge of the Company, threatened by the
Commission and all requests for additional information on the part of the
Commission have been complied with or otherwise satisfied; and (iv) at and
as of such Time of Delivery neither the Registration Statement nor the
Prospectus as amended or supplemented contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that no such certificate shall apply to any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representative expressly for use therein.
The obligations of the Company and the Underwriters of any
Designated Securities under the Pricing Agreement applicable to such Designated
Securities are subject to the additional condition that there shall have been
furnished to the Company and such Underwriters, at the Time of Delivery for
such Designated Securities, such certificates of officers as shall, in the
reasonable judgment of the Representative and the Company, be appropriate to
indicate that the Indenture has been duly authorized, executed and delivered by
the Trustee and is a valid and binding agreement of the Trustee.
7. (a) The Company will indemnify and hold harmless each
Underwriter of the applicable Designated Securities against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject with respect to such Designated Securities, 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 any untrue statement or
alleged untrue statement of any material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement
or the Prospectus as amended or supplemented, or any amendment or supplement
thereto with respect to such Designated Securities, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue
16
16
statement or alleged untrue statement or omission or alleged omission made in
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated
Securities through the Representative expressly for use therein; and provided
further that the Company shall not be liable to any Underwriter of Designated
Securities or any person controlling such Underwriter under the indemnity
agreement in this subsection (a) with respect to any of 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 such
Designated 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 indemnity agreement in this subsection (a) 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.
(b) Each Underwriter of the applicable Designated
Securities will indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject with
respect to such Designated Securities, 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 any untrue statement or alleged untrue statement
of any material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement or the Prospectus as amended
or supplemented, or any amendment or supplement thereto with respect to such
Designated Securities, 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 of such documents in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representative expressly for use
therein; and will reimburse the Company for any legal fees or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in
addition to any liability which the 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.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written 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, and in the
17
17
event that such indemnified party shall not so notify the indemnifying party
within 30 days following receipt of any such notice by such indemnified party,
the indemnifying party shall have no further liability under such subsection to
such indemnified party unless such indemnifying party shall have received other
notice addressed and delivered in the manner provided in the second paragraph
of Section 11 hereof of the commencement of such action; 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 in its reasonable judgment, 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 or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7
is unavailable to 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 of the Designated Securities on
the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, 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 of the Designated
Securities 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 the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters,
in each case as set forth in the table on the cover page of the Prospectus as
amended or supplemented with respect to such Designated Securities. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or such Underwriters 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 such Designated Securities
18
18
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 applicable Designated 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 Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
8. If any Underwriter shall default in its obligation to
purchase the Underwriters' Securities which it has agreed to purchase under the
Pricing Agreement applicable to such Securities, the Representative may in its
discretion arrange for itself or for another party or other parties to purchase
such Underwriters' Securities on the terms contained herein. If within 36
hours after such default by any Underwriter the Representative do not arrange
for the purchase of such Underwriters' Securities, then the Company shall be
entitled to a further period of 36 hours within which to procure another party
or other parties to purchase such Underwriters' Securities on such terms. In
the event that, within the respective prescribed periods, the Representative
notify the Company that it has so arranged for the purchase of such
Underwriters' Securities, or the Company notifies the Representative that it
has so arranged for the purchase of such Underwriters' Securities, the
Representative or the Company, respectively, shall have the right to postpone
the Time of Delivery for such Underwriters' 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 any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement or the Prospectus as
amended or supplemented which in the opinion of Shearman & Sterling and counsel
for the Company referred to in Section 6(b) hereof 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 it had originally
been a party to the Pricing Agreement with respect to such Designated
Securities. In the event that neither the Representative nor the Company
arrange for another party or parties to purchase such Underwriters' Securities
as
19
19
provided in this Section, the Company shall have the right to require each
non-defaulting Underwriter to purchase and pay for the Underwriters' Securities
which such non-defaulting Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase the Underwriters' Securities which
the defaulting Underwriter or Underwriters shall have so failed to purchase up
to an amount thereof equal to 10% of the principal amount of the Underwriters'
Securities which such non-defaulting Underwriter has otherwise agreed to
purchase under the Pricing Agreement relating to such Designated Securities;
provided, however, that if the aggregate principal amount of Underwriters'
Securities which any defaulting Underwriter or Underwriters shall have so
failed to purchase is more than one-eleventh of the aggregate principal amount
of the Designated Securities, then the Pricing Agreement relating to such
Designated Securities may be terminated either by the Company or, through the
Representative, by such Underwriters as have agreed to purchase in the
aggregate 50% or more of the remaining Designated Securities under the Pricing
Agreement relating to such Designated Securities, without liability on the part
of any non-defaulting Underwriter or the Company, except for the expenses
referred to in Section 5(f) hereof and the indemnification provided in Section
7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
9. The respective indemnities, agreements,
representations, warranties and other statements of the Underwriters and the
Company hereunder, as set forth in this Agreement or made by 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 the Company or any of its
officers or directors or any controlling person, and shall survive delivery of
and payment for the Designated Securities.
10. If any Pricing Agreement shall be terminated pursuant
to Section 8 hereof, or if any Designated Securities are not delivered by the
Company as provided herein because the condition set forth either in the last
paragraph of Section 6 or in Section 6(f) has not been met, the Company shall
then be under no liability hereunder to any Underwriter, except as provided in
Section 5(f) and Section 7 hereof; but if for any other reason any Designated
Securities are not delivered by the Company as provided herein, the Company
will be liable to reimburse the Underwriters, through the Representative, for
all out-of-pocket expenses, including counsel fees and disbursements, as
approved in writing by the Representative, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Designated Securities, but the Company shall then have no further liability to
any Underwriter except as provided in Section 5(f) and Section 7 hereof.
11. In all dealings with the Company under this Agreement
and each Pricing Agreement, the Representative of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
Company shall be entitled to act and rely upon any statement, request, notice
or agreement on behalf of any Underwriter made or given by the Representative.
20
20
All statements, requests, notices and agreements hereunder
shall be in writing, or by telegram if promptly confirmed in writing, and if to
the Representative or the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the Representative at
[_______________________________], and if to the Company shall be sufficient in
all respects if delivered or sent by registered mail to the Company at Xxx
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, attention of the Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 7(c) hereof
shall be delivered or sent by registered mail directly to such Underwriter at
its principal office.
12. This Agreement and each Pricing Agreement shall be
binding upon, and inure solely to the benefit of, the Underwriters and the
Company, and to the extent provided in Section 7 and Section 9 hereof, the
officers and directors of the Company and any person who controls any
Underwriter or the Company, and their respective personal representatives,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No
purchaser of any of the Designated Securities from any Underwriter shall be
construed a successor or assign by reason merely of such purchase.
13. Time shall be of the essence of each Pricing
Agreement.
14. This Agreement and each Pricing Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
15. This Agreement and each Pricing Agreement may be
executed by each of the parties hereto and thereto in any number of
counterparts, and by each of the parties hereto and thereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument.
21
21
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon the acceptance
hereof by you, this letter and such acceptance hereof shall constitute a
binding agreement.
Very truly yours,
FORD MOTOR COMPANY
By:__________________
Accepted in New York, New York,
as of the date hereof:
[___________________]
By: _______________________________________
Name:
Title:
22
ANNEX I
Pricing Agreement
[__________________]
as Representative of the
Several Underwriters named
in Schedule I hereto,
[__________________]
[__________________]
[_________], 199_
Ladies and Gentlemen:
Ford Motor Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement dated [____________] (the "Underwriting Agreement")
between the Company and [___________], to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety
and shall be deemed to be a part of this Pricing Agreement to the same extent
as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty set forth in Section 2 of the Underwriting
Agreement relating to the Prospectus shall be deemed to have been made as of
the date of the Underwriting Agreement and, with respect to the Prospectus as
amended or supplemented applicable to the Designated Securities covered by this
Pricing Agreement, shall be deemed to have been made as of the date of this
Pricing Agreement. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you, is now proposed to be filed, or, in the
case of a supplement, electronically transmitted for filing, with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase
23
Xxx. I - 2
from the Company, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal amount of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto [, less the principal amount of Designated Securities covered
by Delayed Delivery Contracts, if any, [as may be specified in such Schedule
II] [attributable to such Underwriter as determined pursuant to Section 3 of
the Underwriting Agreement]].
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in the Master Agreement Among Underwriters, the form of
which you have delivered to us. You represent that you are authorized on
behalf of yourselves and each of the Underwriters to enter into this Pricing
Agreement.
Very truly yours,
FORD MOTOR COMPANY
By___________________
Accepted as of the date hereof:
By: ______________________________________
Name:
Title:
24
SCHEDULE I TO PRICING AGREEMENT
Principal Amount
Of Designated
Securities to
Underwriters be Purchased
------------ -------------------
[Name of Representative] . . . . . . . . . . . . . . . . $
[Names of Other Underwriters] . . . . . . . . . . . . . .
_____________________
Total . . . . . . . . . . . . . . . . . . . . . . . . . . $
=====================
25
SCHEDULE II TO PRICING AGREEMENT
Title of Designated Securities:
[ %] [Extendable] [Floating Rate] [Zero Coupon] [Notes] [Debentures]
due
Aggregate principal amount:
$
Denominations:
[$1,000] [$5,000] [$ ]
Price to Public:
% of the principal amount of the Underwriters' Securities, plus
accrued interest from to [and accrued
amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Underwriters' Securities, plus
accrued interest from to [and accrued
amortization, if any, from to ]
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No redemption provisions]
[The Designated Securities may be redeemed, [otherwise than through
the sinking fund,] in whole or in part at the option of the Company,
in the amount of $ or an integral multiple thereof,
[on or after , at the
following redemption prices (expressed in percentages of principal
amount). If [redeemed on or before , , %, and if]
redeemed during the 12-month period beginning ,
Year Redemption Price
---- ----------------
26
Sch. II - 2
and thereafter at 100% of their principal amount, together in
each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after
, , at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest
to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Securities on
in each of the years through at 100% of their
principal amount plus accrued interest] [, together with [cumulative]
[non-cumulative] redemptions at the option of the Company to retire an
additional $ principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued
interest.]
[If Designated Securities are Extendable Debt
Securities, insert--
Extendable Provisions:
The Designated Securities are repayable on , at the option
of the holder, at their principal amount with accrued interest. The
initial annual interest rate will be %, and thereafter the annual
interest rate will be adjusted on , , and to a rate
not less than % of the effective annual interest rate on
obligations with year maturities as of the [interest date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are Floating Rate Debt
Securities, insert--
Floating Rate Provisions:
27
Sch. II - 3
The initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each ,
, and ] [to an annual rate of %
above the average rate for -year [-month] [securities]
[certificates of deposit] by and [insert names
of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the
weekly average per annum market discount rate for
-month Treasury bills plus % of the Interest Differential
(the excess, if any, of (i) the then-current weekly average
per annum secondary market yield for -month certificates
of deposit over (ii) the then-current interest yield
equivalent of the weekly average per annum market discount
rate for -month Treasury bills); [from and
thereafter the rate will be the then-current interest yield
equivalent plus % of the Interest Differential].]
Time of Delivery:
[time and date], 19
Closing Location:
Shearman & Sterling, New York, New York
Funds in which Underwriters to make Payment:
[Immediately available funds] [[New York] Clearing House funds]
Delayed Delivery:
[None]
[Underwriters' commission shall be % of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been
entered into. Such commission shall be payable to the order of
.]
[Minimum aggregate principal amount of Designated Securities to be
offered and sold pursuant to Delayed Delivery Contracts: $ .]
[Minimum aggregate principal amount of Designated Securities to be
offered and sold pursuant to Delayed Delivery Contracts: $ .]
[Additional Comfort Procedures:]
[Other Terms:]
28
ANNEX II
Delayed Delivery Contract
, 19
FORD MOTOR COMPANY
c/o [_________________]
[____________________]
[____________________]
Attention:
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Ford Motor
Company (hereinafter called the "Company"), and the Company agrees to sell to
the undersigned,
principal amount of the Company's
[Title of Designated Securities] (hereinafter called the "Designated
Securities"), offered by the Company's Prospectus dated , 19 , as
amended or supplemented, receipt of a copy of which is hereby acknowledged, at
a purchase price of % of the principal amount thereof, plus accrued
interest from the date from which interest accrues as set forth below, and on
the further terms and conditions set forth in this contract. [The undersigned
will purchase the Designated Securities from the Company on , 19
(the "Delivery Date"), and interest on the Designated Securities so purchased
will accrue from , 19 . Each of the Designated Securities will be
dated the Delivery Date thereof.] [The undersigned will purchase the
Designated Securities from the Company on the delivery date or dates and in the
principal amount or amounts set forth below:
Principal Date from Which
Delivery Date Amount Interest Accrues
------------- ------ ----------------
, 19 $ , 19
, 19 $ , 19
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date". Each of the Designated
Securities will be dated the Delivery Date thereof.]
29
Xxx. II - 2
Payment for the Designated Securities which the undersigned
has agreed to purchase on [the] [each] Delivery Date shall be made to the
Company or its order by certified or official bank check in [Immediately
available funds] [[New York] Clearing House funds] at the office of
[at 9:30 a.m., New York City time,] on [the] [such] Delivery Date upon delivery
to the undersigned of the Designated Securities then to be purchased by the
undersigned in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [the] [each] Delivery Date shall be
subject to the conditions that (1) the purchase of Designated Securities by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject and (2) the
Company, on or before , 19 , shall have sold to the several
Underwriters, pursuant to the Pricing Agreement dated , 19 with
the Company, an aggregate principal amount of Designated Securities equal to
$ minus the aggregate principal amount of Designated Securities covered
by this contract and other contracts similar to this contract. The obligation
of the undersigned to take delivery of and make payment for Designated
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants to the Company that,
as of the date of this contract, the undersigned is not prohibited from
purchasing the Designated Securities hereby agreed to be purchased by it under
the laws of the jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by any party hereto without the written consent of the other parties.
This contract may be executed by the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
30
Xxx. II - 3
It is understood that the acceptance by the Company of any
Delayed Delivery Contract (including this contract) is in the sole discretion
of the Company and that, without limiting the foregoing, acceptances of such
contract need not be on a first-come, first-served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered.
Yours very truly,
By_________________________
(Signature)
___________________________
(Name and Title)
___________________________
(Address)
Accepted, , 19
FORD MOTOR COMPANY
By_______________________
THREE SIGNED COPIES OF THIS CONTRACT MUST BE RECEIVED BY
[______________________] NOT LATER THAN 5:00 P.M. ON , ACCOMPANIED
BY A CERTIFICATE OF SECRETARY OR OTHER EVIDENCE, SATISFACTORY TO THE COMPANY,
AS TO THE AUTHORITY OF THE PERSON OR PERSONS SIGNING THIS CONTRACT.
31
ANNEX III
At the request of Ford Motor Company, we are enclosing a copy
of the unaudited condensed consolidated financial statements of Ford Motor
Company and Consolidated Subsidiaries as of [the end of the most recent fiscal
quarter and the same fiscal quarter for the preceding fiscal year], together
with a manually signed copy of our review report thereon. Our review was made
in accordance with standards established by the American Institute of Certified
Public Accountants.
A review of interim financial information consists principally
of obtaining an understanding of the system for the preparation of interim
financial information, applying analytical review procedures to financial data,
and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an examination in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion on the financial statements
referred to above. However, as set forth in the attached report, based on our
review, we are not aware of any material modifications that should be made to
the financial statements referred to above for them to be in conformity with
generally accepted accounting principles.
[As further set forth in the attached report, we have
previously audited, in accordance with generally accepted auditing standards,
the consolidated balance sheet as of [the end of the most recent fiscal year]
and the related consolidated statements of income, stockholders' equity and
cash flows for the year then ended (not presented herein); and in our report
dated [the date of such opinion], we expressed an unqualified opinion on those
consolidated financial statements. In our opinion, the information set forth
in the condensed consolidated balance sheet as of [the end of the most recent
fiscal year] appearing in Ford's First Quarter press release is fairly stated
in all material respects in relation to the consolidated balance sheet from
which it has been derived.]*
We are independent certified public accountants with respect
to Ford Motor Company and its subsidiaries within the meaning of the Securities
Act of 1933 and the applicable published rules and regulations thereunder.
________________________
* Paragraph will be deleted from the letters for the second and third
fiscal quarters.
32
ANNEX IV
Matters to be Covered by Letters of
Coopers & Xxxxxxx
(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 the 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 a review 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, Executive Committee, Finance
Committee, Audit Committee 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
______________________
* [In the case of letters delivered pursuant to Section 6(d)(i) 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.]
33
Xxx. IV - 2
(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 resulting from conversions of convertible
debt of the Company's subsidiaries or resulting from purchases of
shares pursuant to the Company's announced stock repurchase program or
any net change (i) in aggregate debt (excluding inter-company debt and
deposit accounts) of any Financial Services subsidiary of the Company
which had aggregate outstanding debt of $1 billion or more as of the
date of its most recent quarterly financial statements, or (ii) in
aggregate debt (excluding inter-company debt) of the Company and any
Automotive subsidiary of the Company which had aggregate outstanding
debt of $250 million or more 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
the 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 6(d)(ii) 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.
______________________
* [In the case of letters delivered pursuant to Section 6(d)(i) 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.]
