FORD MOTOR COMPANY
Debt Securities
Underwriting Agreement
----------------------
November 9, 1995
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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,
Trustee (the "Trustee").
1. Particular sales of Designated Securities may be
made from time to time to the Underwriters of such Securities,
for whom Xxxxxx Brothers Inc. will act as representative (the
"Representative"). The term "Representative" also refers to
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Xxxxxx Brothers Inc. 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. 33-45887) 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
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the date of such Preliminary 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 only such exceptions as are not material to
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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
assist the Company in obtaining performance by the purchaser in
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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 Underwriters' Securities so
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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
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that 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
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as the Representative may from time to 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:
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(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 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 by the Indenture; and
13
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
14
Statement, 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
15
Designated 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 statement or alleged untrue
16
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
17
commencement thereof, and in the 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 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)
18
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 provided in this Section, the Company
19
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
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 3 World Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, 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
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: /s/ X.X. Xxxxx
---------------------
Accepted in New York, New York,
as of the date hereof:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
ANNEX I
Pricing Agreement
-----------------
XXXXXX BROTHERS INC.
as Representative of the
Several Underwriters named
in Schedule I hereto,
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
, 19
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 November 9, 1995 (the
"Underwriting Agreement") between the Company and Xxxxxx Brothers
Inc., 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
Xxx. I-2
purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto [,
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:
SCHEDULE I TO PRICING AGREEMENT
-------------------------------
Principal Amount
Of Designated
Securities to
Underwriters be Purchased
------------ ---------------
$
Xxxxxx Brothers Inc.
[Names of Other Underwriters]
----------------------------
Total $
============================
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
----
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--
Sch.II-3
Floating Rate Provisions:
------------------------
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:]
ANNEX II
--------
Delayed Delivery Contract
-------------------------
, 19
FORD MOTOR COMPANY
c/x Xxxxxx Brothers Inc.
3 World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
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.]
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.
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
XXXXXX BROTHERS INC. 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.
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.
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.]
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.]
