BORGWARNER INC. UNDERWRITING AGREEMENT
EXHIBIT 1.1
3.50% CONVERTIBLE SENIOR NOTES DUE 2012
April 6, 2009
To the Managers named in Schedule I hereto
for the Underwriters named in Schedule II hereto
for the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
BorgWarner Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
underwriters named in Schedule II hereto (the “Underwriters”), for whom you are acting as managers
(the “Managers”) and for whom Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated are acting as representatives (the “Representatives”), the principal amount of
its 3.50% Convertible Senior Notes due 2012 set forth in Schedule I hereto (the “Firm Securities”),
to be issued under the indenture specified in Schedule I hereto (the “Indenture”) between the
Company and the Trustee identified in such Schedule (the “Trustee”). The Company also proposes to
issue and sell to the several Underwriters an additional principal amount of its 3.50% Convertible
Senior Notes due 2012 not exceeding the principal amount set forth in Schedule I hereto (the
"Additional Securities”), if and to the extent that the Representatives shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such amount of securities granted to
the Underwriters in Section 2 hereof. The Firm Securities and the Additional Securities are
hereinafter collectively referred to as the “Securities.” The Securities are convertible into the
Company’s common stock, par value $0.01 per share (the “Common Stock"). The shares of Common Stock
into which the Securities are convertible are hereinafter collectively referred to as the
"Underlying Shares.” If the firm or firms listed in Schedule II hereto include only the Managers
listed in Schedule I hereto, then the terms “Underwriters” and “Managers” as used herein shall each
be deemed to refer to such firm or firms.
In connection with the offering of the Securities, the Company is entering into convertible
note hedge and warrant transactions with one or more of the Underwriters or affiliates thereof
pursuant to confirmation letters, dated the date hereof, to the form of the 1992 ISDA Master
Agreement (Multicurrency—Cross Border) (the “Hedge and Warrant Documentation”). This Agreement,
the Indenture, the Securities and the Hedge and Warrant Documentation are referred to herein
collectively as the “Operative Documents.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement, including a prospectus, (the file number of which is set forth in Schedule
I hereto) on Form S-3, relating to securities (the “Shelf Securities”), including the Securities
and the Underlying Shares, to be issued from time to time by the Company. The registration
statement as amended to the date of this Agreement, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430B
under the Securities Act of 1933, as amended (the “Securities Act”), is
hereinafter referred to as the “Registration Statement,” and the related prospectus covering
the Shelf Securities dated March 4, 2008 in the form first used to confirm sales of the Securities
(or in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic
Prospectus.”
The Basic Prospectus, as supplemented by the prospectus supplement specifically relating to
the Securities in the form first used to confirm sales of the Securities (or in the form first made
available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminary
prospectus” means any preliminary form of the Prospectus. For purposes of this Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale
Prospectus” means the preliminary prospectus together with the free writing prospectuses each
identified in Schedule I hereto, and “broadly available road show” means a “bona fide electronic
road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available
without restriction to any person.
As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any,
incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein
with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any
preliminary prospectus or free writing prospectus shall include all documents subsequently filed by
the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with each
of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are
pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (iv) the Registration Statement and the Prospectus comply,
and as amended or supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder, (v) the Time
of Sale Prospectus does not, and at the time of each sale of the Securities in connection with the
offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date
(as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by
the Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, (vi) each broadly available road
show, if any, when considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading
and (vii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph do not apply
to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Managers expressly for use therein or (B) that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee.
(c) The Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities
Act) eligible to use the Registration Statement as an automatic shelf registration statement and
the Company has not received notice that the Commission objects to the use of the Registration
Statement as an automatic shelf registration statement. The Company is not an “ineligible issuer”
in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each
free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or used or referred to by the Company
complies or will comply in all material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder. Except for the free writing
prospectuses, if any, identified in Schedule I hereto, and electronic road shows each furnished to
you before first use, the Company has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in each of the Time of Sale
Prospectus and the Prospectus, and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the business, property, prospects, financial
condition or results of operation of the Company and its subsidiaries, taken as a whole (“Material
Adverse Effect”).
(e) Each subsidiary of the Company has been duly incorporated or organized, is validly
existing as a corporation or other legal entity in good standing under the laws of the jurisdiction
of its incorporation or organization, has the corporate or other power and authority to own its
property and to conduct its business as described in each of the Time of Sale Prospectus and the
Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect; all of the issued shares of capital stock or other
equity interests of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for minority interests set forth in a
schedule previously provided by the Company to the Underwriters) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Securities have been
duly authorized and are validly issued, fully paid and non-assessable. The Underlying Shares
issuable upon conversion of the Securities in accordance with the terms of the Securities and the
Indenture have been duly authorized and, when issued and delivered in accordance with the terms of
the Securities and the Indenture, will be validly issued, fully paid and non-assessable, and the
issuance of such Underlying Shares will not be subject to any preemptive or similar rights.
(i) The Indenture has been duly qualified under the Trust Indenture Act and has been duly
authorized, executed and delivered by, and is a valid and binding agreement of, the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors’ rights generally and equitable principles of general applicability.
(j) The Hedge and Warrant Documentation has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally
and equitable principles of general applicability.
(k) The Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability, and will be entitled to the benefits of the Indenture.
(l) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement and each Operative Document will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or any agreement or
other instrument binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under any Operative
Document, except such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the
Securities and with respect to the approval of the listing of the Underlying Shares on the New
York Stock Exchange.
(m) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(n) There are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in each of the Time of Sale Prospectus and the
Prospectus, and proceedings that would not have a Material Adverse Effect, or materially adversely
affect the power or ability of the Company to perform its obligations under any Operative Document
or to consummate the transactions contemplated by the Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so described; and there are
no statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(o) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder.
(p) The Company is not, and after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in the Prospectus will not be, an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.
(q) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, have a Material Adverse Effect.
(r) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(s) There are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or
to require the Company to include such securities with the Securities registered pursuant to
the Registration Statement.
(t) The statements set forth in each of the Time of Sale Prospectus and the Prospectus under
the caption “Description of Notes,” insofar as they purport to constitute a summary of the terms of
the Indenture and the Securities, and under the caption “Description of Capital Stock,” insofar as
they purport to constitute a summary of the terms of the Underlying Shares, fairly summarize such
terms in all material respects.
(u) Deloitte & Touche LLP, who have audited certain financial statements of the Company and
its subsidiaries, and have audited the Company’s internal control over financial reporting and
expressed an opinion on management’s assessment thereof, were, and PricewaterhouseCoopers LLP are,
the independent registered public accounting firm for the Company as required by the Securities Act
and the rules and regulations of the Commission thereunder.
(v) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with accounting principles generally accepted in the United States of
America. Except as disclosed in each of the Time of Sale Prospectus and the Prospectus, the
Company’s internal control over financial reporting was effective as of December 31, 2008 and the
Company is not aware of any material weaknesses in its internal control over financial reporting.
(w) Except as disclosed in the Time of Sale Prospectus and in the Prospectus, since the date
of the latest audited financial statements included or incorporated by reference in the Time of
Sale Prospectus or the Prospectus, there has been no change in the Company’s internal control over
financial reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting,
(x) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures were effective as of December 31, 2008.
(y) Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer,
or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any
of its subsidiaries or affiliates, has taken or will take any action in furtherance of an offer,
payment, promise to pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government official” (including
any officer or employee of a government or government-owned or controlled entity or of a public
international organization, or any person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the Company and its subsidiaries and
affiliates have conducted their businesses in compliance
with applicable anti-corruption laws and have instituted and maintain and will continue to
maintain policies and procedures designed to promote and achieve compliance with such laws and with
the representation and warranty contained herein.
(z) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting
requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions
where the Company and its subsidiaries conduct business, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened.
(aa) (i) Neither the Company nor any of its subsidiaries (collectively, the “Entity”) or, to
the knowledge of the Entity, any director, officer, employee, agent, affiliate or representative of
the Entity, is an individual or entity (“Person”) that is, or is owned or controlled by a Person
that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury
(“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Entity represents and covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or
in any country or territory that, at the time of such funding or facilitation, is
the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and covenants that it has not knowingly engaged in, is not now
knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in
any country or territory, that at the time of the dealing or transaction is or was the subject of
Sanctions.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Securities set forth in Schedule II
hereto opposite its name at the purchase price set forth in Schedule I hereto.
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Securities,
and the Underwriters shall have the right to purchase, severally and not jointly, up to the
aggregate principal amount of Additional Securities set forth in Schedule I hereto at the purchase
price set forth in Schedule I, plus accrued interest, if any, from the Closing Date to the Option
Closing Date. The Representatives may exercise this right on behalf of the Underwriters in whole
or from time to time in part by giving written notice. Any exercise notice shall specify the
aggregate principal amount of Additional Securities to be purchased by the Underwriters and the
date on which such securities are to be purchased. Each purchase date must be at least one
business day after the written notice is given, unless waived in writing by the Company, may not be
earlier than the Closing Date for the Firm Securities nor later than ten business days after the
date of such notice and must be within the thirteen day period beginning with the Closing Date.
Additional Securities may be purchased solely for the purpose of covering over-allotments made in
connection with the offering of the Firm Securities. On each day, if any, that Additional
Securities are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and
not jointly, to purchase the aggregate principal amount of Additional Securities (subject to such
adjustments to eliminate fractional Securities as the Representatives may determine), that bears
the same proportion to the total aggregate principal amount of Additional Securities to be
purchased on such Option Closing Date as the aggregate principal amount of Firm Securities set
forth in Schedule II hereto opposite the name of such Underwriter bears to the total aggregate
principal amount of Firm Securities.
3. Public Offering. The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Securities as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Company is
further advised by you that the Securities are to be offered to the public upon the terms set forth
in the Prospectus.
4. Payment and Delivery. Payment for the Firm Securities shall be made to the Company in
Federal or other funds immediately available in New York City against delivery of such Firm
Securities for the respective accounts of the several Underwriters on the closing date and time set
forth in Schedule I hereto, or at such other time on the same or such other date, not later than
the fifth business day thereafter, as may be designated by you in writing. The time and date of
such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Securities shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such Additional Securities for the
respective accounts of the several Underwriters on the date specified in the corresponding notice
described in Section 2 or at such other time on the same or on such other date, in any event not
later than the tenth business day thereafter, as may be designated by you in writing.
The Firm Securities and the Additional Securities shall be registered in such names and in
such denominations as the Representatives shall request in writing not later than
one full business day prior to the Closing Date or the applicable Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date
or the applicable Option Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have
been given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company or any of its
subsidiaries by any “nationally recognized statistical rating organization,” as such
term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Time of Sale Prospectus that, in your judgment, is material
and adverse and that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the Time of Sale
Prospectus.
(b) The Underwriters shall have received on the Closing Date and on each Option Closing Date,
if any, a certificate, dated the Closing Date or Option closing Date, as the case may be, and
signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date or Option Closing Date, as the case may be,
and that the Company has complied with all of the agreements and satisfied all of the conditions on
its part to be performed or satisfied hereunder on or before such date.
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.
(c) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Securities Act within the applicable time period prescribed for such filing by the rules and
regulations under the Securities Act; the final term sheet substantially in the form of Schedule
III hereto, and any material required to be filed by the Company pursuant to Rule 433(d) under the
Securities Act, shall have been filed with the Commission within the applicable time periods
prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or, to the Company’s knowledge, threatened by the Commission and
no notice of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act shall have
been received; no stop order suspending or preventing the use of the Prospectus or any issuer free
writing prospectus shall have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied with to the
Representatives’ reasonable satisfaction.
(d) The Underwriters shall have received on the Closing Date and on each Option Closing Date,
if any, an opinion of Miller, Canfield, Paddock and Stone, P.L.C., Troy, Michigan, outside counsel
for the Company, dated the Closing Date or Option Closing Date, as the case may be, to the effect
set forth in Exhibit A hereto.
(e) The Underwriters shall have received on the Closing Date and on each Option Closing Date,
if any, an opinion of the General Counsel or the Corporate Counsel of the Company, dated the
Closing Date or Option Closing Date, as the case may be, to the effect set forth in Exhibit B
hereto.
(f) The Underwriters shall have received on the Closing Date and on each Option Closing Date,
if any, an opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriters, in form
and substance satisfactory to the Underwriters.
The opinion of counsel for the Company described in Section 5(d) above shall be
rendered to the Underwriters at the request of the Company and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof, the Closing Date and
each Option Closing Date, if any, a letter dated the date hereof, the Closing Date or Option
Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from each
of Deloitte & Touche LLP and PricewaterhouseCoopers LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information contained
in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the
letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The “lock-up” agreements, each substantially in the form of Exhibit C hereto,
between the Representatives and each executive officer or director of the Company relating to sales
and certain other dispositions of Common Stock or certain other securities shall be in full force
and effect on the Closing Date and each Option Closing Date, if any.
The several obligations of the Underwriters to purchase Additional Securities hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Securities to be sold on such Option Closing Date and other matters
related to the issuance of such Additional Securities.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, a signed copy of the Registration Statement (including
exhibits thereto and documents incorporated by reference) and to deliver to each of the
Underwriters during the period mentioned in Section 6(e) or 6(f) below, as many
copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated therein by
reference therein and any supplements and amendments thereto or to the Registration Statement as
you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to which you
reasonably object and to file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on
behalf of, used by, or referred to by the Company and not to use or refer to any proposed free
writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a
time when the Prospectus is not yet available to prospective purchasers and any event shall occur
or condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered
to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Securities as in
the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion
of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the
Company) to which Securities may have been sold by you on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under
the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Securities under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or
referred to by the Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Securities (within the time required by Rule
456(b)(1), if applicable), all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii)
all costs and expenses related to the transfer and delivery of the Securities to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or legal investment memorandum in connection with the offer and sale of the Securities
under state securities laws and all expenses in connection with the qualification of the Securities
for offer and sale under state securities laws as provided in Section 6(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the offering of the
Securities by the National Association of Securities Dealers, Inc., (v) any fees charged by the
rating agencies for the rating of the Securities, (vi) the cost of the preparation, issuance and
delivery of the Securities, (vii) the costs and charges of any trustee, transfer agent, registrar
or depositary, (viii) the costs and expenses incident to listing the Underlying Shares on the New
York Stock Exchange, (ix) the costs and expenses of the Company relating to investor presentations
on any “road show” undertaken in connection with the marketing of the offering of the Securities,
including, without limitation, expenses associated with the preparation or dissemination of any
electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and the cost of any aircraft chartered in connection with
the road show, (x) the document production charges and expenses associated with printing this
Agreement and (xi) all other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8 entitled “Indemnity and
Contribution,” and the last paragraph of Section 10 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable
on resale of any of the Securities by them and any advertising expenses connected with any offers
they may make.
(j) If the third anniversary of the date hereof occurs before all the Securities have been
sold by the Underwriters, prior to the third anniversary to file a new shelf registration statement
and to take any other action necessary to permit the public offering of the Securities to
continue without interruption; references herein to the Registration Statement shall include
the new registration statement declared effective by the Commission.
(k) The Company also covenants with each Underwriter that, without the prior written consent
of the Representatives on behalf of the Underwriters, it will not, during the period ending 90 days
after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option, right or warrant
to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or
(2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the Common Stock, whether any such transaction described
in clause 1 or 2 above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise or (3) file any registration statement with the Commission relating to the
offering of any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock. The foregoing sentence shall not apply to (a) the Securities and
Underlying Shares to be sold hereunder, (b) the transactions described in the Hedge and Warrant
Documentation, (c) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, (d) any shares of Common Stock issued, or options to
purchase Common Stock granted, pursuant to existing employee benefit plans, or (e) the
establishment of a trading plan pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), for the transfer of shares of Common Stock, provided that such
plan does not provide for the transfer of Common Stock during the 90-day restricted period.
(l) To prepare a final term sheet relating to the offering of the Securities, containing only
information that describes the final terms of the Securities or the offering in a form consented to
by the Managers, and to file such final term sheet within the period required by Rule 433(d)(5)(ii)
under the Securities Act following the date the final terms have been established for the offering
of the Securities.
(m) To list the Underlying Shares issuable upon conversion of the Securities on the New York
Stock Exchange.
(n) To reserve and keep available at all times, free of preemptive rights, sufficient
Underlying Shares to enable the Company to satisfy any obligation to issue Underlying Shares upon
conversion of the Securities.
(o) Between the date hereof and the Closing Date, not to do or authorize any act or thing that
would result in an adjustment of the conversion rate of the Securities.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to
take any action that would result in the Company being required to file with the Commission under
Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise
would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of the Underwriters and each person, if
any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any
Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or the Prospectus or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (other than with respect to the registration Statement, in
the light of the circumstances under which they were made) not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Underwriter, but only with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the
Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a)
or 8(b), such person (the “indemnified party”) shall promptly notify the person against
whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by the Managers
authorized to appoint counsel under this Section set forth in Schedule I hereto, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, which consent shall not be
unreasonably withheld, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by, or on behalf of,
any indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or Section
8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but
also the relative fault of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in connection with the
offering of the Securities shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the Underwriters bear to the
aggregate initial public offering price of the Securities as set forth in the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other hand 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 by the Underwriters and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Underwriters’
respective obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amounts of Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 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 that
does not take account of the equitable considerations referred to in Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(d) shall be deemed to include, subject to the
limitations set forth above, 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 Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages that 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 Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter, any person controlling any
Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of and payment for any of the
Securities.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the Nasdaq Global Market, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(ii) trading of any securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance
services in the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or (v) there shall
have occurred any outbreak or escalation of hostilities, or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and which, singly or together
with any other event specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the
manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the principal amount of
Firm Securities set forth opposite their respective names in Schedule II bears to the aggregate
principal amount of Firm Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that any Underwriter has agreed
to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Securities and the aggregate principal amount of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of Securities to be
purchased on such date, and arrangements satisfactory to you and the Company for the purchase of
such Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the Company. In
any such case either you or the Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any, in the
Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents
or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Additional Securities and the aggregate principal amount of
Additional Securities with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Additional Securities to be purchased on such Option Closing Date,
the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase the Additional Securities to be sold on such Option Closing Date or (ii) purchase not
less than the aggregate principal amount of Additional Securities that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements
and any prior written agreements (to the extent not superseded by this Agreement) that relate to
the offering of the Securities, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.
(b) The Company acknowledges that in connection with the offering of the Securities: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with
the offering of the Securities.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you at the address set forth in
Schedule I hereto; and if to the Company shall be delivered, mailed or sent to the address set
forth in Schedule I hereto.
************
Please confirm your agreement by signing a copy of this Underwriting Agreement in the space
set forth below.
| Very truly yours, BORGWARNER INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof
| XXXXXX XXXXXXX & CO. INCORPORATED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| DEUTSCHE BANK SECURITIES INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Acting severally on behalf of themselves and
the several Underwriters named in Schedule II hereto
the several Underwriters named in Schedule II hereto
SCHEDULE I
Managers:
|
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
|
| Citigroup Global Markets Inc. | ||
| Deutsche Bank Securities Inc. | ||
Managers authorized to
release the lock up
under Section 6(k): |
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, acting jointly | |
Managers authorized to
appoint counsel under Section 8(c): |
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, acting jointly | |
Indenture:
|
Indenture dated as of September 23, 1999 between the Company and the Trustee, as supplemented by the Second Supplemental Indenture, to be dated as of April 9, 2009, between the Company and the Trustee | |
Trustee:
|
The Bank of New York Mellon Trust Company, N.A. | |
Registration Statement File No.:
|
Registration Statement on Form S-3 (No. 333-149539) | |
Time of Sale Prospectus
|
Prospectus dated March 4, 2008 relating to the Shelf Securities | |
| The preliminary prospectus supplement dated April 6, 2009 relating to the Securities | ||
| Term Sheet dated April 6, 2009 | ||
Securities to be purchased:
|
3.50% Convertible Senior Notes due 2012 | |
Aggregate Principal Amount of Firm
Securities:
|
$325,000,000 | |
Aggregate Principal Amount of
Additional Securities:
|
$ 48,750,000 | |
Purchase Price:
|
97.0% of the principal amount of the Securities, plus accrued interest, if any, from April 9, 2009 | |
Maturity:
|
April 15, 2012 | |
Interest Rate:
|
3.50% per annum, accruing from April 9, 2009 | |
Interest Payment Dates:
|
April 15 and October 15 of each year, commencing October 15, 2009 | |
Closing Date and Time:
|
April 9, 2009 10:00 a.m., New York City time | |
Closing Location:
|
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP | |
| Xxx Xxxxxxx Xxxxx | ||
| Xxx Xxxx, XX 00000 |
Address for Notices to Underwriters:
|
Xxxxxx Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx |
|
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Equity Syndicate Desk | ||
| Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||
| 0 Xxxxx Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Syndicate Operations | ||
| Citigroup Global Markets Inc. | ||
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Deutsche Bank Securities Inc. | ||
| 00 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Equity Capital Markets — Syndicate Desk | ||
| with a copy to | ||
| Deutsche Bank Securities Inc. | ||
| 00 Xxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: General Counsel | ||
| with a copy to: | ||
| Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP | ||
| Xxx Xxxxxxx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attention: Xxxxxx X. Xxxxxxxxx, Esq. | ||
Address for Notices to the Company:
|
BorgWarner Inc. | |
| 0000 Xxxxxx Xxxx | ||
| Xxxxxx Xxxxx, XX 00000 | ||
| Attention: General Counsel | ||
| with a copy to: | ||
| Miller, Canfield, Paddock and Stone, P.L.C. | ||
| 000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000 | ||
| Xxxx, XX 00000 | ||
| Attention: Xxxx X. Xxxxxxxx, Esq. |
SCHEDULE II
| Principal Amount of Firm Securities To Be | ||||
| Underwriter | Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 81,250,000 | ||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
81,250,000 | |||
Citigroup Global Markets Inc. |
81,250,000 | |||
Deutsche Bank Securities Inc. |
81,250,000 | |||
Total |
$ | 325,000,000 | ||
