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EXHIBIT 1
FORD MOTOR COMPANY
Debt Securities
Underwriting Agreement
________, 19__
[Name and address of Representative]
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 ____________ will act as
representative (the "Representative"). The term "Representative" also refers to
_______________ 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
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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. 333-54285) on Form S-3
("Registration Statement No. 333-54285") and a registration statement (No.
333-_______) on Form S-3 ("Registration Statement No. 333-______) in
respect of the Securities have been filed with the Securities and Exchange
Commission (the "Commission"), each in the form heretofore delivered to the
Representative, and each such registration statement in such form has been
declared effective by the Commission; and no stop order suspending the
effectiveness of either registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in Registration Statement No.
333-_____ being hereinafter called the "Preliminary Prospectus", the various
parts of Registration Statement No. 333-54285, including all exhibits thereto
but excluding Form T-1, and the various parts of Registration Statement No.
333-______, 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 either 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, each being
hereinafter collectively referred to as a "Registration Statement", and the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or electronically transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to either Registration
Statement, 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 such Registration
Statement or the date of such Preliminary Prospectus or Prospectus, as the
case may be, and any reference herein to any amendment or supplement to
either Registration Statement, the Preliminary Prospectus or the Prospectus
shall be deemed to include any documents filed after the effective date of
such 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
electronically transmitted 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 transmission); provided, however, that
subsequent to the issue and sale, pursuant to this Agreement and one or more
related Pricing Agreements, of Securities in the aggregate principal amount
of $1,000,000,000 (which amount of Securities remain registered but unissued
under Registration Statement No. 333-54285), the term
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"Registration Statement" shall, for all purposes herein except Section 7
hereof, refer to Registration Statement No. 333-________, including all
exhibits thereto but excluding Form T-1);
(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) Each 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 each 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 each 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 each 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 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 each 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
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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
(h) PricewaterhouseCoopers LLP ("PwC"), who have certified certain of
the financial statements included or incorporated by reference in each
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
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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 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 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 or
by such other method of payment 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
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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 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 make a payment to the Representative for the
accounts of the Underwriters, by wire or internal bank transfer to an account
specified by the Representative (or by such other method of payment as the
Representative and the Company may agree upon in writing), 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 either 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 either
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 electronically transmitted 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 either
Registration Statement or the Prospectus as amended or supplemented or for
additional information; and, in the event of the issuance of any such stop
order or of any order preventing or suspending the use of any prospectus
relating to such Designated Securities or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify such Designated
Securities for offering and sale under the securities laws of such states as
the Representative may request and to continue such qualifications in effect
so long as necessary under such laws for the distribution of such Designated
Securities, provided that, in connection therewith the Company shall not be
required to qualify as a foreign corporation to do business, or to file a
general consent to service of process in any jurisdiction, and provided
further that 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 each 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
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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 each Registration Statement (as such date is defined in Rule
158(c) under the Act), an earning statement of the Company and its
consolidated subsidiaries complying with Rule 158 under the Act and covering a
period of at least twelve consecutive months beginning after such effective
date;
(e) During a period of five years from the date of the Pricing
Agreement applicable to such Designated Securities, to furnish to the
Representative copies of all reports or other communications (financial or
other) furnished to security holders, and to deliver to the Representative,
during such same period, (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange on which any of the Securities or any class
of securities of the Company is listed, and (ii) such additional information
concerning the business and financial condition of the Company as the
Representative may from time to 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); and
(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).
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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 either Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with or otherwise satisfied;
(b) X.X. Xxxxxxxxx, Esq., an Assistant General Counsel and Secretary
of the Company, or other counsel satisfactory to the Representative in its
reasonable judgment, shall have furnished to the Representative his written
opinion, dated the Time of Delivery for such Designated Securities, in form
satisfactory to the Representative in its reasonable judgment, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, 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
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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;
(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) Each Registration Statement has become effective under
the Act and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of either Registration Statement has
been issued and no proceeding for that purpose has been instituted
or threatened by the Commission; each 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 each Registration Statement and the financial statements and
other accounting information contained in each 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 each
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 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 either
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in either 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 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
10
11
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) Each 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) Each 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 each Registration Statement and
the financial statements and other accounting information contained in
each 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 each
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 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 each Registration
Statement or the Prospectus, they have generally reviewed and discussed such
statements with 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 either Registration Statement, at
the time that such 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 Delivery for such Designated Securities, PwC
shall have furnished to the Representative a letter dated such Time of
Delivery, in form satisfactory
11
12
to the Representative in its reasonable judgment, to the effect set forth in
Annex III hereto and as to such other matters as the Representative may
reasonably request as shall be referred to in Schedule II to the Pricing
Agreement applicable to such Designated Securities;
(e) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of the
Company and its subsidiaries considered as a whole, or any material adverse
change in the financial position or results of operations of the Company and
its subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, which in any such
case makes it impracticable or inadvisable in the reasonable judgment of the
Representative to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(f) Since the time of execution of the Pricing Agreement applicable to
the Designated Securities, the United States shall not have become engaged in
hostilities which have resulted in the declaration of a national emergency or
a declaration of war, which makes it impracticable or inadvisable in the
reasonable judgment of the Representative to proceed with the public offering
or the delivery of the Designated 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
either 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 of the Registration Statements 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
12
13
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, either
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 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, either Registration Statement or the Prospectus as
amended or supplemented, or any amendment or supplement thereto with respect
to such Designated Securities, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any of
such documents in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representative
expressly for use therein; and will reimburse the Company for any legal fees
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in addition to
any liability which the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the meaning of the
Act.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of written notice of the commencement of any action such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, and in the event that such indemnified
party shall not so
13
14
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) 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
14
15
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 each 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 each 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 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
15
16
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.
All statements, requests, notices and agreements hereunder shall be in
writing, or by telegram if promptly confirmed in writing, and if to the
Representative or the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the Representative at
_______________________, and if to the Company shall be sufficient in all
respects if delivered or sent by registered mail to the Company at Xxx
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, attention of the Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 7(c) hereof
shall be delivered or sent by registered mail directly to such Underwriter at
its principal office.
12. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters and the Company, and to
the extent provided in Section 7 and Section 9 hereof, the officers and
directors of the Company and any person who controls any Underwriter or the
Company, and their respective personal representatives, successors and
assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement or any such Pricing Agreement. No purchaser of any
of the Designated Securities from any Underwriter shall be construed a
successor or assign by reason merely of such purchase.
13. Time shall be of the essence of each Pricing Agreement.
14. This Agreement and each Pricing Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
15. This Agreement and each Pricing Agreement may be executed by each
of the parties hereto and thereto in any number of counterparts, and by each
of the parties hereto and thereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
16
17
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: ____________________
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
[NAME OF REPRESENTATIVE]
By: ____________________
Name:
Title:
17
18
ANNEX I
Pricing Agreement
[Name of Representative],
as Representative of the
Several Underwriters named
in Schedule I hereto
[Address of Representative]
_________, 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 __________, 19__ (the "Underwriting Agreement") between the
Company and _________________, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety and
shall be deemed to be a part of this Pricing Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty set forth in Section 2 of the Underwriting Agreement
relating to the Prospectus shall be deemed to have been made as of the date of
the Underwriting Agreement and, with respect to the Prospectus as amended or
supplemented applicable to the Designated Securities covered by this Pricing
Agreement, shall be deemed to have been made as of the date of this Pricing
Agreement. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
An amendment to each 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 electronically
transmitted for filing with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase 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
19
ANNEX I - 2
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: ____________________
Name:
Title:
Accepted as of the date hereof:
[NAME OF REPRESENTATIVE]
By: ____________________
Name:
Title:
20
SCHEDULE I TO PRICING AGREEMENT
Principal Amount
Of Designated
Securities to
Underwriters be Purchased
------------ ------------
[Name of Representative] ............................ $
[Names of Other Underwriters]........................
-------------
Total................................................ $
=============
21
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
---- ----------------
22
Sch. II - 2
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price equal to
the principal amount thereof, plus accrued interest to the date of
redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest] [, together with [cumulative]
[non-cumulative] redemptions at the option of the Company to retire an
additional $ principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued
interest.]
[If Designated Securities are Extendable Debt
Securities, insert--
Extendable Provisions:
The Designated Securities are repayable on , at the option of
the holder, at their principal amount with accrued interest. The initial
annual interest rate will be %, and thereafter the annual interest
rate will be adjusted on , , and to a rate not
less than % of the effective annual interest rate on
obligations with year maturities as of the [interest date 15 days
prior to maturity date] prior to such [insert maturity date].]
[If Designated Securities are Floating Rate Debt
Securities, insert--
Floating Rate Provisions:
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].]
23
Sch. II - 3
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:]
24
ANNEX II
Delayed Delivery Contract
, 19
FORD MOTOR COMPANY
c/o [Name and address of Representative]
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 $
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.]
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 [wire or internal bank transfer to an account specified by the
Company][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.
25
Annex II - 2
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.
26
Annex 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: ___________________________
Name:
Title:
THREE SIGNED COPIES OF THIS CONTRACT MUST BE RECEIVED BY [NAME OF
REPRESENTATIVE] 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.
27
ANNEX III
Matters to be Covered by Letters of
PwC
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder, and the statement in each
Registration Statement in answer to Item 10 of Form S-3 is accurate insofar as
it relates to them;
(ii) In their opinion, the audited consolidated financial statements of
the Company and its subsidiaries included or incorporated by reference in the
Company's Annual Report on Form 10-K most recently filed with the Commission
and covered by their report included therein (the "audited financials") comply
as to form in all material respects with the applicable accounting requirements
of the Act or the Exchange Act, as applicable, and the published rules and
regulations under the Act or the Exchange Act, as applicable;
(iii) On the basis of limited procedures, not constituting an audit, which
have been carried out through a specified date not more than two business days
prior to the date of each such letter,* including (1) performing the procedures
specified by the American Institute of Certified Public Accountants for 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
(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
---------------
*[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] [each] 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.]
28
ANNEX III-2
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 each
Registration Statement, in the reports filed with the Commission from the
beginning of the Company's fiscal year through the date of such letter* and, in
the case of each letter to be delivered pursuant to Section 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] [each] 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.]
