EXHIBIT 1.1
FORD MOTOR COMPANY CAPITAL TRUST II
- -% Cumulative Convertible Trust Preferred Securities
(Liquidation Preference $50 per Preferred Security)
[Form of Underwriting Agreement]
-, 2002
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
As Representatives of the several
underwriters listed in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Ford Motor Company Capital Trust II (the "Trust"), a statutory
business trust organized under the Business Trust Act (the "Delaware Act") of
the State of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
ss. 3801 et seq.), proposes, subject to the terms and conditions stated herein,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of - -% Cumulative Convertible Trust Preferred
Securities of the Trust (the "Underwritten Securities") and, for the sole
purpose of covering over-allotments in connection with the sale of the
Underwritten Securities, at the option of the Underwriters, up to an additional
- - -% Cumulative Convertible Trust Preferred Securities of the Trust (the "Option
Securities"). The Underwritten Securities and the Option Securities are herein
referred to as the "Preferred Securities". The Preferred Securities will be
convertible at the option of the holder thereof into shares of common stock, par
value $0.01 per share (the "Common Stock"), of Ford Motor Company, a Delaware
corporation (the "Company").
The Preferred Securities will be guaranteed by the Company
with respect to distributions and amounts payable upon liquidation or redemption
(the "Guarantee"), to the extent described in the Prospectus (as defined below),
pursuant to the Preferred Securities Guarantee Agreement (the "Guarantee
Agreement") to be dated as of the First Time of Delivery (as defined below)
executed and delivered by the Company and JPMorgan Chase Bank, as Guarantee
Trustee (the "Guarantee Trustee") for the benefit of the holders from time to
time of the Preferred Securities. The entire proceeds from the sale of the
Preferred Securities will be combined with the entire proceeds from the sale by
the Trust to the Company of its common securities (the "Common Securities") and
will be used by the Trust to purchase $- in aggregate principal amount of -%
Junior Subordinated Convertible Debentures due - (the "Debentures") issued by
the Company. The Preferred Securities and the Common Securities will be issued
pursuant to the amended and restated declaration of trust of the Trust, to be
dated as of - (the "Declaration"), among the Company, as Sponsor, the trustees
named therein (the "Trustees") and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Debentures will be issued
pursuant to an Indenture to be dated as of - (the "Indenture") between the
Company and JPMorgan Chase Bank, as Indenture Trustee (the "Indenture Trustee").
The shares of Common Stock initially issuable upon conversion of the Debentures,
as described in the Prospectus, are referred to herein as the "Conversion
Shares". The Preferred Securities, the Guarantee, the Debentures and the
Conversion Shares are collectively referred to herein as the "Securities".
Capitalized terms used herein without definition have the respective meanings
specified in the Prospectus.
1. Each of the Trust and the Company jointly and severally represents
and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 ( "Registration
Statement No. 333-49164") and a registration statement on Form S-3
("Registration Statement No. 333-75214"), each as amended by
Pre-Effective Amendment No. 1 to Registration Statement No. 333-75214,
have been filed with the Securities and Exchange Commission (the
"Commission") (Registration Statement No. 333-75214 also constitutes
Post-Effective Amendment No. 1 to Registration Statement
No. 333-49164); such registration statements and any amendment thereto,
each in the form heretofore delivered to you, have been declared
effective by the Commission in such form; 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 (the preliminary prospectus together with the preliminary
prospectus supplement included in Pre-Effective Amendment No. 1 to
Registration Statement No. 333-75214 or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"), and the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act, taken together, is hereinafter called the
"Preliminary Prospectus"; Registration Statement No. 333-49164, as
amended by Registration Statement No. 333-75214, and Registration
Statement No. 333-75214, as amended by Pre-Effective Amendment No. 1
thereto, at the time at which Registration Statement No. 333-75214
became effective, and the documents incorporated by reference in such
registration statements pursuant to Item 12 of Form S-3 under the Act,
including the information contained in the form of final prospectus and
final prospectus supplement, each dated -, filed with the Commission
pursuant to Rule 424(b) under the Act and deemed by virtue of Rule 430A
under the Act to be part of the registration statements at the time
Registration Statement No. 75214 was declared effective, and also
including the exhibits and schedules thereto, taken together, being
hereinafter collectively referred to as the "Registration Statement";
such final prospectus and final prospectus supplement, each dated -, in
the form first filed with the Commission pursuant to Rule 424(b) under
the Act, and the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Act, taken together, being hereinafter
referred to as the "Prospectus"; any reference herein to the
Registration Statement 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
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of the Registration Statement or the date of the Prospectus, as the
case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement or the Prospectus shall be
deemed to refer to and include any documents filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") after the date of
such Registration Statement or the Prospectus, as the case may be,
which are deemed to be incorporated by reference therein).
(b) No order preventing or suspending the use of the
Preliminary Prospectus has been issued by the Commission, and the
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;)
(c) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement
or the Prospectus will conform, in all material respects, to the
requirements of the Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to (i)
any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
through you expressly for use therein or (ii) that part of the
Registration Statement that constitutes the Statements of Eligibility
and Qualification on Forms T-1 (the "Forms T-1");
(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, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the financial condition or results of operations of the Company and
its subsidiaries, considered as a whole;
(e) The Trust has been duly formed and is validly existing in
good standing as a business trust under the Delaware Act, is and will
be treated as a "grantor trust" for federal income tax purposes under
existing law, has the business trust power and authority to conduct its
business as presently conducted and as described in the Prospectus, and
is not required to be authorized to do business in any other
jurisdiction;
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(f) Each of Ford Motor Credit Company ("FMCC"), Ford Holdings
LLC, The American Road Insurance Company, The Hertz Corporation and
Granite Management Corporation, to the extent then a subsidiary of the
Company (collectively, the "Principal Subsidiaries"), has been duly
incorporated or organized and is validly existing as a corporation or
limited liability company in good standing under the laws of its
jurisdiction of incorporation or organization, and all of the issued
shares of capital stock of FMCC and of each of the other Principal
Subsidiaries have been duly and validly authorized and issued, are
fully paid and non-assessable, and the shares of FMCC and of the other
Principal Subsidiaries, being all the outstanding shares of common
stock of FMCC and the other Principal Subsidiaries, are owned by the
Company, directly or indirectly, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind,
with only such exceptions as are not material to the business of the
Company and its subsidiaries considered as a whole;
(g) The Company has an authorized capitalization as set forth
in the Prospectus; all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus;
(h) The Conversion Shares have been duly authorized by the
Company and validly reserved for issuance by the Company upon
conversion of the Debentures by all necessary corporate action of the
Company, and the Conversion Shares, when duly issued by the Company,
will be validly issued, fully paid and non-assessable; no holder
thereof will be subject to personal liability solely by reason of being
such a holder; and the issuance of the Conversion Shares will not be
subject to preemptive or similar rights;
(i) The Company has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Declaration, the Indenture and the Guarantee Agreement; the Trust has
the business trust power and authority to execute, deliver and perform
its obligations under this Agreement;
(j) This Agreement has been duly authorized, executed and
delivered by the Company and the Trust;
(k) The Preferred Securities have been duly and validly
authorized by the Declaration and, when authenticated in the manner
provided for in the Declaration and issued and delivered against
payment therefor as provided herein, will be duly and validly issued
and (subject to the terms of the Declaration) fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust, not subject to any preemptive or similar rights, and will
conform to the description thereof contained in the Prospectus; holders
of Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware;
(l) The Declaration has been duly authorized by the Company
and, as of the First Time of Delivery, will have been duly executed and
delivered by the Company. Assuming due authorization, execution and
delivery of the Declaration by the Trustees,
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the Declaration will, as of the First Time of Delivery, be a valid and
binding obligation of the Company and the Trustees, enforceable against
the Company and the Trustees in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting
the enforcement of creditors' rights generally, by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law), or considerations of public policy
or the effect of applicable law relating to fiduciary duties;
(m) The Guarantee Agreement has been duly authorized by the
Company and, as of the First Time of Delivery, will have been duly
executed and delivered by the Company. As of the First Time of
Delivery, the Guarantee Agreement will be duly qualified under the
Trust Indenture Act, and assuming due authorization, execution and
delivery of the Guarantee Agreement by the Guarantee Trustee and upon
execution and delivery by the Company, will be a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium 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;
(n) The Indenture has been duly authorized by the Company and,
as of the First Time of Delivery, will have been duly executed and
delivered by the Company. As of the First Time of Delivery, the
Indenture will be duly qualified under the Trust Indenture Act and,
assuming due authorization, execution and delivery of the Indenture by
the Indenture Trustee and upon execution and delivery by the Company,
will be enforceable against the Company in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium 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;
(o) The Debentures have been duly authorized, and, assuming
due authorization, execution and delivery of the Indenture by the
Indenture Trustee, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to the Trust against
payment therefor as described in the Prospectus, will be entitled to
the benefits of the Indenture and will be valid and binding obligations
of the Company enforceable against the Company in accordance with their
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium 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;
(p) The execution and delivery by the Company and the Trust
of, and the performance by the Company and the Trust of their
obligations under, this Agreement, the execution and delivery by the
Company of, and the performance by the Company of its obligations
under, the Declaration, the Indenture, the Guarantee Agreement and the
Debentures, the issuance and delivery by the Trust of the Preferred
Securities and the
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consummation of the transactions herein and therein contemplated 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 (including the Trust) considered as a
whole), any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease, financing agreement or other similar agreement or
instrument to which the Company or any of its subsidiaries (including
the Trust) is a party or by which the Company or any of its
subsidiaries (including the Trust) is bound or to which any of the
property or assets of the Company or any of its subsidiaries (including
the Trust) is subject, nor will such actions result in any violation of
the provisions of the certificate of incorporation or by-laws of the
Company or the Declaration, nor will such actions result in any
violation (in each case material to the Company and its subsidiaries
(including the Trust) considered as a whole) of any statute or any
order, rule or regulation of any court or regulatory authority or other
governmental body having jurisdiction over the Company or any of its
subsidiaries (including the Trust) or any of their properties; and no
consent, approval or authorization or order of, or qualification with,
any governmental body or agency is required for, and the absence of
which would materially affect, the execution and delivery by the
Company and the Trust of, and the performance by the Company and the
Trust of their obligations under, this Agreement, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, the Declaration, the Indenture, the Guarantee
Agreement and the Debentures, the issuance and delivery by the Trust of
the Preferred Securities and the consummation of the transactions
herein and therein contemplated, except such approvals as will be
obtained under the Act, the Exchange Act or the Trust Indenture Act and
as may be required under the securities or Blue Sky laws of the various
states or the securities law of non-U.S. jurisdictions;
(q) Neither the Company nor any of its Principal Subsidiaries
is (i) in violation of its certificate of incorporation or by-laws,
(ii) in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(r) The statements set forth in the Prospectus under the
caption "Description of the Preferred Securities", "Description of the
Debentures", "Description of the Preferred Securities Guarantee",
"Relationship among the Preferred Securities, the Debentures and the
Preferred Securities Guarantee", "Description of Debt Securities",
"Description of Capital Stock", "Description of Trust Preferred
Securities", and "Description of Preferred Securities Guarantees",
insofar as they purport to constitute a summary of the terms thereof,
and under the caption "United States Federal Income Tax
Considerations", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate in all
material respects;
(s) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject in which there
is a reasonable possibility of an adverse decision which, individually
or in the aggregate, could have a material adverse effect or
prospective
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material adverse effect, on the financial condition or results of
operations (on an annual basis) of the Company and its subsidiaries
considered as a whole; and, to the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(t) Neither the Company nor the Trust is and, after giving
effect to the offering and sale of the Preferred Securities, will be an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(u) PricewaterhouseCoopers, L.L.P., who have certified certain
financial statements of the Company and its subsidiaries included in
the Registration Statement and the Prospectus, as amended or
supplemented, are, to the best knowledge of the Company, independent
public accountants with respect to the Company and its subsidiaries as
required by the Act and the rules and regulations of the Commission
thereunder; and
(v) The Common Securities have been duly authorized for
issuance by the Declaration and, when issued and delivered by the Trust
to the Company against payment therefor as described in the Prospectus,
will be validly issued and (subject to the terms of the Declaration)
fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and will conform in all material respects to the
description thereof in the Prospectus; the issuance of the Common
Securities is not subject to preemptive or other similar rights;
holders thereof will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the Corporation Law of the State of Delaware; and at
the First Time of Delivery, all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
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2. Subject to the terms and conditions herein set forth, (a) the Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at a
purchase price per Preferred Security of $-, the number of Underwritten
Securities set forth opposite the name of such Underwriter in Schedule I hereto
and (b) in the event and to the extent that the Underwriters shall exercise the
election to purchase Option Securities as provided below, the Trust agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, at the purchase price per
Preferred Security set forth in Clause (a) of this Section 2, that portion of
the number of Option Securities as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional Preferred
Securities) determined by multiplying such number of Option Securities by a
fraction, the numerator of which is the maximum number of Option Securities
which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Option Securities which all of the Underwriters are entitled
to purchase hereunder.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to -Option Securities, at the purchase price per Preferred
Security set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Underwritten Securities. Any such election to
purchase Option Securities may be exercised only by written notice from you to
the Trust, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Option Securities to be
purchased and the date on which such Option Securities are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Trust otherwise agree in
writing, no earlier than two or later than ten business days after the date of
such notice.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Debentures, the Company agrees to pay as
compensation for the Underwriters' arranging the investment therein of such
proceeds an amount in immediately available funds of $- per Preferred Security
purchased hereunder.
3. Upon the authorization by you of the release of the Underwritten
Securities and, if applicable, the Option Securities, the several Underwriters
propose to offer the Underwritten Securities and, if applicable, the Option
Securities for sale upon the terms and conditions described in the Prospectus.
4. (a) The Preferred Securities to be purchased by each Underwriter
hereunder will be issued by or on behalf of the Trust in one or more global
securities, which will be deposited with, or in accordance with the instructions
of The Depository Trust Company, New York, New York ("DTC") and registered in
the name of DTC's nominee, against payment by or on behalf of such Underwriter
of the purchase price therefor by wire or interbank transfer to an account
specified by the Trust in immediately available funds. The time and date of such
deposit and payment shall be, with respect to the Underwritten Securities, 9:30
a.m., New York City time, on - or such other time and date as you and the Trust
may agree upon in writing, and, with respect to the Option Securities, 9:30
a.m., New York time, on the date specified by you in the written notice given by
you of the Underwriters' election to purchase such Option Securities, or
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such other time and date as you and the Trust may agree upon in writing. Such
time and date for delivery of the Underwritten Securities are herein called the
"First Time of Delivery", such time and date for delivery of the Option
Securities, if not the First Time of Delivery, are herein called the "Second
Time of Delivery", and each such time and date for delivery are herein called a
"Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Preferred Securities and any additional documents requested by
the Underwriters pursuant to Section 7(k) hereof, will be delivered at the
offices of Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022
(the "Closing Location") all at such Time of Delivery. A meeting will be held at
the Closing Location at 3:00 p.m., New York City time, on the New York Business
Day next preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. Each of the Trust and the Company jointly and severally agrees with
each of the Underwriters:
(a) To prepare the Prospectus and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution
and delivery of this Agreement, or, if applicable, such earlier time as
may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus
prior to having furnished you with a copy of the proposed form thereof
and given you a reasonable opportunity to review the same; to advise
you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish you with copies thereof; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of the Preliminary Prospectus or Prospectus, of the suspension
of the qualification of the Preferred Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of the
Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Preferred Securities for offering and
sale under the securities laws of such states or territories of the
United States as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Preferred Securities, provided that in connection
therewith neither the Company nor the Trust shall
9
be required to qualify as a foreign entity 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 hereof shall be at your expense;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as you may from time to
time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or sale
of the Preferred Securities and if at such time either (i) any event
shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or (ii) if
for any other reason it shall be necessary during such period to amend
or supplement the Prospectus in order to comply with the Act, to notify
you and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
Preferred Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies
as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to security holders of the
Company as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Act), an earnings statement of the
Company complying with Section 11(a) of the Act and the rules and
regulations thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell, pledge, grant any
option to purchase, make any short sale or otherwise dispose of,
directly or indirectly, or file a registration statement with the SEC
under the Act relating to, or enter into any swap, hedge or other
arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of, any shares of Common Stock or any
securities convertible into, exercisable or exchangeable for, or that
represent the right to receive, shares of Common Stock, whether any
such aforementioned transaction is to be settled by delivery of Common
Stock, any other securities, in cash or otherwise, without Goldman,
Sachs & Co.'s prior written consent; provided that the foregoing shall
not apply to the Preferred Securities to be sold hereunder, the
Conversion Shares, issuances of Common Stock as consideration in future
acquisitions, transfers of Common Stock to the Company's affiliates and
issuances of Common Stock under existing employee benefit or
compensation plans.
(f) For as long as it shall be required under the Exchange
Act, to furnish to its stockholders as soon as practicable after the
end of each fiscal year, commencing with the
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fiscal year ended December 31, 2001, an annual report (including a
balance sheet and statements of income, stockholders' equity and cash
flows of the Company and its consolidated subsidiaries certified by
independent public accountants);
(g) During a period of two years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) generally furnished to
stockholders, and to deliver to you 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
class of securities of the Company is listed; and during a period of
one year from the effective date of the Registration Statement, to
furnish Goldman, Sachs & Co. such additional information concerning the
business and financial condition of the Company as Goldman, Sachs & Co.
may from time to time reasonably request (such financial statements to
be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission), it being understood that
such information shall be subject to such confidentiality and use
restrictions as may be agreed upon from time to time and that such
information shall not require the preparation of reports or other
documents not otherwise prepared by the Company in the normal course of
its business;
(h) To use the net proceeds received by it from the sale of
the Preferred Securities pursuant to this Agreement in the manner
specified in the Prospectus; and
(i) To use its best efforts to list, subject to notice of
issuance, the Preferred Securities on the New York Stock Exchange (the
"Exchange").
11
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of its counsels and accountants in connection with
the registration of the Preferred Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, the Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of duplicating the Blue
Sky Memorandum; (iii) all expenses in connection with the qualification of the
Preferred Securities for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the reasonable fees and disbursements
of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky Memorandum; (iv) all fees and expenses in
connection with listing the Preferred Securities on the Exchange; (v) the filing
fees incident to securing any required review by the NASD of the terms of the
sale of the Preferred Securities; (vi) the cost of preparing securities
certificates; (vii) the cost and charges of any transfer agent or registrar; and
(viii) all other reasonable costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their
own costs and expenses, including the cost of printing any Agreement among the
Underwriters and this Agreement, fees of their counsel, stock transfer taxes on
resale of any of the Preferred Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Preferred
Securities to be delivered at each Time of Delivery, shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Trust and the Company herein are, at and as of such Time of
Delivery, true and correct, the condition that the Trust and the Company shall
have performed all of their obligations in all material respects hereunder
theretofore to be performed and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters, shall
have furnished to you such opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the
validity of the Preferred Securities being delivered at such Time of
Delivery, the Registration Statement, the Prospectus, and other related
matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Morris, Nichols, Arsht & Tunnell, special Delaware counsel
for the Trust, shall have furnished to you their written opinion, dated
such Time of Delivery, in form and substance reasonably satisfactory to
you, to the effect that:
12
(i) The Trust has been duly formed and is validly
existing in good standing as a business trust under the
Delaware Act and has the business trust power and authority to
conduct its business as presently conducted and as described
in the Prospectus;
(ii) Assuming due authorization, execution and
delivery of the Declaration by the Company and the Trustees,
the Declaration is a legal, valid and legally binding
agreement of the Company and the Trustees, enforceable against
the Company and the Trustees in accordance with its terms,
subject to the effect of bankruptcy, insolvency,
reorganization, receivership, fraudulent conveyance,
moratorium and other similar laws affecting the rights and
remedies of creditors generally as from time to time in
effect, general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or
at law), or considerations of public policy or the effect of
applicable law relating to fiduciary duties;
(iii) The execution and delivery of this Agreement by
the Trust, and the performance by the Trust of its obligations
hereunder, have been duly authorized by all requisite business
trust action on the part of the Trust;
(iv) The Preferred Securities have been duly
authorized for issuance by the Declaration and are duly and
validly issued and, subject to the terms of the Declaration,
fully paid and non-assessable beneficial interests in the
assets of the Trust;
(v) Holders of Preferred Securities will be, subject
to the terms of the Declaration, entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; and
(vi) Under the Declaration and the Delaware Act, the
issuance of the Preferred Securities is not subject to
preemptive rights;
(d) Dennis E. Ross, Vice President - General Counsel of the
Company, or such counsel satisfactory to you in your reasonable
judgment, shall have furnished to you his written opinion, dated such
Time of Delivery, in form and substance satisfactory to you, 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 power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, except to the extent that the
failure to so qualify or be in good standing would not have a
material adverse effect on the financial
13
condition or results of operations of the Company and its
subsidiaries, considered as a whole (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that he believes that both you and he
are justified in relying upon such opinions and certificates);
(iii) Each of the Principal Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation, and all of the issued shares of capital stock
of FMCC and each of the other Principal Subsidiaries have been
duly and validly authorized and issued, are fully paid and
non-assessable, and the shares of FMCC and of the other
Principal Subsidiaries owned by the Company, being at least
all the outstanding shares of common stock of FMCC, are owned
by the Company, directly or indirectly, free and clear of any
pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, with only such exceptions as are not
material to the business of the Company and its subsidiaries
considered as a whole;
(iv) The Company has an authorized capitalization as
set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the
Prospectus;
(v) The Conversion Shares have been duly authorized
by the Company and validly reserved for issuance by the
Company upon conversion of the Debentures by all necessary
corporate action of the Company, and the Conversion Shares,
when duly issued by the Company, will be validly issued, fully
paid and non-assessable; no holder thereof will be subject to
personal liability solely by reason of being such a holder;
and the issuance of the Conversion Shares will not be subject
to preemptive or similar rights;
(vi) To the best of such counsel's knowledge and
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject in which there is a reasonable possibility of
an adverse decision which, individually or in the aggregate,
could have a material adverse effect on the financial
condition, business, business prospects or results of
operations (on an annual basis) of the Company and its
subsidiaries, considered as a whole; and, to such counsel's
knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vii) This Agreement and the Declaration have been
duly authorized, executed and delivered by the Company;
14
(viii) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes a valid
and binding agreement of the Company enforceable in accordance
with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium 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;
(ix) The Debentures have been duly authorized,
executed and delivered by the Company and, when authenticated
in accordance with the provisions of the Indenture and
delivered against the payment therefor as described in the
Prospectus, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company
enforceable in accordance with their terms, except as the same
may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium 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;
(x) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid
and binding agreement of the Company enforceable in accordance
with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium 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;
(xi) Each of the Indenture and the Guarantee
Agreement has been duly qualified under the Trust Indenture
Act;
(xii) The execution and delivery by the Company of,
and the performance by the Company of its obligations under
this Agreement, the Declaration, the Indenture, the Guarantee
Agreement and the Debentures and the consummation of the
transactions herein and therein contemplated (including the
issuance of the Preferred Securities by the Trust) 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 (including the
Trust) considered as a whole), 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 or any of its subsidiaries (including
the Trust) is bound or to which any of the property or assets
of the Company or any of its subsidiaries (including the
Trust) is subject, nor will such actions result in any
violation of the provisions of the certificate of
incorporation or by-laws of the Company or the Declaration,
nor will such actions result in any violation (in each case
material to the Company and its subsidiaries (including the
Trust) considered as a whole) of any statute or any order,
rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the
15
Company or any of its subsidiaries (including the Trust) or
any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for
the issue and sale of the Preferred Securities or the
consummation by the Company and the Trust of the transactions
contemplated by this Agreement, except such approvals as will
be obtained under the Act, the Exchange Act or the Trust
Indenture Act and as may be required under securities or Blue
Sky laws of any jurisdiction in connection with the purchase
and distribution of the Preferred Securities by the
Underwriters;
(xiii) Neither the Company nor any of Principal
Subsidiaries is (i) in violation of its certificate of
incorporation or by-laws, (ii) in default in the performance
or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties
may be bound, which default is likely to have a material
adverse effect on the financial condition, business, business
prospects or results of operations (on an annual basis) of the
Company and its subsidiaries, considered as a whole;
(xiv) The statements set forth in the Prospectus
under the caption "Description of the Preferred Securities",
"Description of the Debentures", "Description of the Preferred
Securities Guarantee", "Relationship among the Preferred
Securities, the Debentures and the Preferred Securities
Guarantee", "Description of Debt Securities", "Description of
Capital Stock", "Description of Trust Preferred Securities"
and "Description of Preferred Securities Guarantees", insofar
as they purport to constitute a summary of the terms thereof
are accurate in all material respects;
(xv) The Registration Statement has become effective
under the Act and, to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose
has been instituted or threatened by the Commission;
(xvi) Neither the Company nor the Trust is an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xvii) Such counsel does not know of any contracts or
other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus
which are not filed or described as required;
(xviii) The documents incorporated by reference in
the Prospectus or any further amendment or supplement thereto
made by the Company or the Trust prior to the First Time of
Delivery (other than the financial statements and other
accounting information contained or incorporated by reference
therein or omitted
16
therefrom, as to which such counsel need not express any
opinion), when they were filed with the Commission, complied
as to form in all material respects with the requirements of
the Exchange Act;
(xix) The Registration Statement and the Prospectus
(other than Exhibit 12 to the Registration Statement and the
financial statements and other accounting information
contained in the Registration Statement or the Prospectus, or
omitted therefrom, and other than that part of the
Registration Statement that constitutes the Forms T-1, as to
which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the
Act; and
(xx) Such counsel believes that (i) neither the
Registration Statement (other than Exhibit 12 thereto and the
financial statements and other accounting information
contained therein or omitted therefrom, and other than that
part of the Registration Statement that constitutes the Forms
T-1, as to which such counsel need not express any 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 and (ii) on the date of the Prospectus and on the
First Time of Delivery, the Prospectus (other than the
financial statements and other accounting information
contained therein or omitted therefrom, as to which such
counsel need not express any opinion), did not and does not
contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
With respect to paragraph (xx) above, such counsel may state
that such counsel's opinion and belief are based upon such counsel's
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof and such investigation as such
counsel deems necessary or appropriate;
(e) Dennis E. Ross, Vice President - General Counsel of the
Company, or such counsel satisfactory to you in your reasonable
judgment, shall have furnished to you his written opinion, dated such
Time of Delivery, confirming the statements in the Prospectus and the
Registration Statement set forth under the caption "United States
Federal Income Tax Considerations" to the extent they constitute
summaries of matters of laws or regulation or legal conclusions;
(f) At the date of this Agreement, you shall have received the
"lock-up" agreements, each substantially in the form of Annex III
hereto, from each of those officers of the Company identified in Annex
II hereto;
(g) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 10:00 a.m., New York City time and also
at each Time of Delivery, PricewaterhouseCoopers, L.L.P. shall have
furnished to you a "comfort letter" or
17
"comfort letters", dated the respective date of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto;
(h) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall not have
occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
other), business, net worth or results of operations of the Company and
its subsidiaries, considered as a whole, the effect of which, in any
such case, is in the reasonable judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Preferred
Securities being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
(i) On or after the date hereof, none of the following events
shall have occurred:
(A) (i) a declaration of a general moratorium on
commercial banking activities in the United States by the
authorities that govern such banking system or a material
disruption in the securities settlement or clearance systems
in the United States, which moratorium or disruption remains
in effect and which, in your reasonable judgment,
substantially impairs your ability to settle the transaction
involving Preferred Securities; provided that the exercise of
such judgment shall take into account the availability of
alternative means for settlement and the likely duration of
such moratorium or disruption with the understanding that if
the Commission or the Board of Governors of the Federal
Reserve System has unequivocally stated prior to the Time of
Delivery that the resumption of such system will occur within
3 business days of the scheduled Time of Delivery for such
Preferred Securities, the ability to settle the transaction
shall not be deemed to be substantially impaired or (ii) (1)
the United States shall have become engaged in hostilities
which have resulted in the declaration of a national emergency
or a declaration of war by the governmental authorities
empowered to make such declaration, (2) any suspension or
limitation on trading in securities generally on the Exchange
or any setting of minimum prices for trading on such exchange,
(3) any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market, or (4) any
material outbreak or material escalation of hostilities
involving the United States in armed conflict, which, in the
case of clause (ii)(1), (2), (3), or (4), makes it
impracticable or inadvisable, in your reasonable judgment,
after consultation with the Company, if possible, to proceed
with the public offering or the delivery of such Preferred
Securities on the terms and in the manner contemplated in the
Prospectus, as amended or supplemented; or
(B) (1) any substantial national or
international calamity or emergency, or (2) any material
adverse change in the general economic, political, legal, tax,
regulatory or financial conditions or currency exchange rates
in the United States (whether resulting from events within or
outside of the United States), which, in your view has caused
a substantial deterioration in the price
18
and/or value of such Preferred Securities, that in the case of
clause (1) or (2), in the mutual reasonable determination of
you and the Company, make it impracticable or inadvisable to
proceed with the public offering or the delivery of such
Preferred Securities on the terms and in the manner
contemplated in the Prospectus, as amended or supplemented.
(j) The Preferred Securities to be sold by the Trust at such
Time of Delivery shall have been duly listed, subject to notice of
issuance, on the Exchange; and
(k) Each of the Company and the Trust shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of
its officers satisfactory to you as to the accuracy of its
representations and warranties herein at and as of such Time of
Delivery, as to its performance of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, as to the matters
set forth in subsections (a) and (h) of this Section and as to such
other matters as you may reasonably request.
8. (a) Each of you represents, warrants and agrees with the
Trust and the Company that (i) it has not offered or sold and, prior to the
expiry of a period of six months from each Time of Delivery, will not offer or
sell any Preferred Securities to persons in the United Kingdom except to those
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers at Securities Regulations 1995; (ii) it has only communicated or
caused to be communicated and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA") received by it in connection with the issue or sale of any preferred
securities in circumstances in which section 21(1) of the FSMA does not apply to
the Trust or the Company; and (iii) it has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Preferred Securities in, from or otherwise involving the United
Kingdom.
(b) You acknowledge that the Preferred Securities may not be
offered, sold, transferred or delivered in or from The Netherlands, as part of
their initial distribution or as part of any re-offering. Each of you
represents, warrants and agrees with the Trust and the Company that it will not
distribute or circulate the Prospectus, Preliminary Prospectus or any other
document in respect of the offering in The Netherlands, other than to
individuals or legal entities which include, but are not limited to, banks,
brokers, dealers, institutional investors and undertakings with a treasury
department, who or which trade or invest in securities in the conduct of a
business or profession.
(c) Each of you represents, warrants and agrees with the Trust
and the Company that it will not offer, sell, or deliver any of the Preferred
Securities, directly or indirectly, or distribute the Prospectus, Preliminary
Prospectus, or any other offering material relating to the Preferred Securities,
in or from any jurisdiction outside the United States except under circumstances
that will, to your best knowledge and belief, result in compliance with the
applicable laws and regulations thereof and which will not impose any
obligations on the Trust or the Company, except as set forth in this Agreement.
19
9. (a) The Company and the Trust, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject
with respect to the 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 an untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company and the Trust shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you expressly
for use therein; and provided further that the Company and the Trust shall not
be liable to any Underwriter under the indemnity agreement in this subsection
(a) with respect to the Preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from the fact that such
Underwriter sold Preferred Securities to a person to whom there was not sent or
given, at or prior to written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then amended or supplemented if the Company
and the Trust previously furnished copies thereof to such Underwriter and the
loss, claim, damage or liability of such Underwriter results from an untrue
statement or alleged untrue statement, or the omission or alleged omission of a
material fact contained in the Preliminary Prospectus and corrected in the
Prospectus or the Prospectus as then amended or supplemented, and if such
Underwriter is required by applicable law so to send or give the Prospectus or
the Prospectus as then amended or supplemented.
The indemnity agreement in this subsection (a) of the Trust
and the Company shall be in addition to any liability which the Trust and 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 will indemnify and hold harmless the
Company and the Trust against any losses, claims, damages or liabilities to
which the Company or the Trust may become subject with respect to the
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 an
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any of such
documents in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use therein; and
will reimburse the Company and the Trust for any legal fees or other expenses
reasonably incurred by the Company or the Trust in connection with investigating
or defending any such action or claim.
20
The indemnity agreement in this subsection (b) of the
Underwriters shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and each administrative
trustee or officer of the Trust (including any person who, with his or her
consent, is named in the Registration Statement as about to become a director of
the Company or the Trust) and to each person, if any, who controls the Trust or
the Company within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party in its reasonable
judgment (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. If the indemnifying party does not assume the defense of such
action, it is understood that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to one separate firm of local attorneys in each
such jurisdiction) at any time for all such indemnified parties, which firms
shall be designated in writing by you, if the indemnified parties under this
Section consist of any Underwriter or any of their respective controlling
persons, or by the Company or the Trust, if the indemnified parties under this
Section 9 consist of the Company, the Trust or any of the Company's or the
Trust's directors, officers or controlling persons. The indemnifying party shall
not be liable for any settlement of an action or claim for monetary damages
which an indemnified party may effect without the consent of the indemnifying
party, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Trust on the one hand and the
Underwriters on the other from the offering of the Preferred Securities. 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
21
relative benefits but also the relative fault of the Company and the Trust on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Trust on
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Preferred
Securities purchased under this Agreement (before deducting expenses) received
by the Trust bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Preferred Securities purchased under
this Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined (i) 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 the Trust on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission and
(ii) with respect to any Underwriter, by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in respect
thereof) with respect to the Preliminary Prospectus result from the fact that
such Underwriter sold Preferred 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 if the
Company or the Trust previously furnished copies thereof to such Underwriter and
the loss, claim, damage or liability of such Underwriter results from an untrue
statement or alleged untrue statement, or the omission or alleged omission of a
material fact contained in the Preliminary Prospectus and corrected in the
Prospectus or the Prospectus as then amended or supplemented, and if such
Underwriter is required by applicable law so to send or give the Prospectus or
the Prospectus as then amended or Supplemented. The Trust, the Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Preferred 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 Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
10. (a) If any Underwriter shall default in its obligation to
purchase the Preferred Securities which it has agreed to purchase hereunder at a
Time of Delivery, you may in your discretion arrange for you or another party or
other parties to purchase such Preferred Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Preferred Securities, then the Trust and
the Company
22
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Preferred Securities on such terms. In the event that, within the respective
prescribed periods, you notify the Trust and the Company that you have so
arranged for the purchase of such Preferred Securities, or the Trust or the
Company notifies you that it has so arranged for the purchase of such Preferred
Securities, you or the Trust or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company and the Trust agree to file promptly any amendments to the Registration
Statement or the Prospectus which in the opinion of Shearman & Sterling, counsel
for the Underwriters and Dennis E. Ross, Vice President - General Counsel of the
Company, may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Preferred Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Preferred Securities of a defaulting Underwriter or Underwriters
by you and the Trust or the Company as provided in subsection (a) above, the
aggregate number of such Preferred Securities which remains unpurchased does not
exceed one-eleventh of the aggregate number of all the Preferred Securities to
be purchased at such Time of Delivery, then the Trust or the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Preferred Securities which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase the Preferred Securities of such defaulting Underwriter or Underwriters
for which such arrangements have not been made up to an amount thereof equal to
10% of the number of shares of the Preferred Securities which such
non-defaulting Underwriter has otherwise agreed to purchase hereunder; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the
purchase of the Preferred Securities of a defaulting Underwriter or Underwriters
by you and the Trust and the Company as provided in subsection (a) above, the
aggregate number of such Preferred Securities which remains unpurchased exceeds
one-eleventh of the aggregate number of all the Preferred Securities to be
purchased at such Time of Delivery, or if the Trust or the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Preferred Securities of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of the Trust to
sell the Option Securities) may thereupon be terminated either by the Trust or
the Company or, through you, by such Underwriters as have agreed to purchase in
the aggregate 50% or more of the aggregate number of remaining Preferred
Securities to be purchased at such Time of Delivery (provided, however, that
nothing herein contained shall obligate any Underwriter to purchase additional
Preferred Securities at such Time of Delivery in excess of the amount required
to be purchased by such Underwriter pursuant to Section 10(b) hereof) without
liability on the part of any non-defaulting Underwriter, the Trust or the
Company, except for the expenses to be borne by the Trust and the Underwriters
as provided in Section 6 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
23
11. The respective indemnities, agreements, representations,
warranties and other statements of the Trust, the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Trust or the Company, or any officer or director or
controlling person of the Trust or the Company, and shall survive delivery of
and payment for the Preferred Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company and the Trust in subsection (a) of Section 9 hereof,
the representations and warranties in subsections (b) and (c) of Section 1
hereof and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificates furnished by the
Company and the Trust pursuant to Section 7 hereof, insofar as they may
constitute a basis for indemnification for liabilities (other than payment by
the Company or the Trust of expenses incurred or paid in the successful defense
of any action, suit or proceeding) arising under the Act, shall not extend to
the extent of any interest therein of a controlling person or partner of an
Underwriter who is a director, officer or controlling person of the Company when
the Registration Statement has become effective or who, with his or her consent,
is named in the Registration Statement as about to become a director of the
Company, except in each case to the extent that an interest of such character
shall have been determined by a court of appropriate jurisdiction as not against
public policy as expressed in the Act. Unless in the opinion of Dennis E. Ross,
Vice President - General Counsel of the Company, the matter has been settled by
controlling precedent, the Company will, if a claim for such indemnification is
asserted, submit to a court of appropriate jurisdiction the question of whether
such interest is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
12. If this Agreement shall be terminated pursuant to Section
10 hereof or as a result of the failure of any condition set forth in Section
7(i) hereof, the Trust and the Company shall not then be under any liability to
any Underwriter, except as provided in Sections 6 and 9 hereof; but, if for any
other reason, any Preferred Securities are not delivered by or on behalf of the
Trust as provided herein, the Company will reimburse the Underwriters through
you for all out-of-pocket expenses, including reasonable fees and disbursements
of counsel, as approved in writing by you, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Preferred Securities not so delivered, but the Trust and the Company shall then
be under no further liability to any Underwriter in respect of the Preferred
Securities not so delivered except as provided in Sections 6 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail or facsimile transmission to you as the Representatives, c/o Goldman, Sachs
& Co., 85 Broad Street, New York, New York 10004 (telefax: (212) 346-3594),
Attention: Special Execution Group; if to the Trust or the Company, shall be
delivered or sent by mail or facsimile transmission to the Company at The
American
24
Road, Dearborn, Michigan 48121 (telefax: (313) 337-9591), Attention: Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 9(c)
hereof shall be delivered or sent by mail or facsimile transmission directly to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Trust or the Company by you upon request. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof.
14. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Trust, the Company and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the Trust
and the Company and any person who controls the Trust, the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Preferred Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
16. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
17. This Agreement may be executed by any one or more of 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.
25
If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement among each of the
Underwriters, the Trust and the Company. It is understood that your acceptance
of this letter on behalf of the Underwriters is pursuant to the authority set
forth in the Agreement among Underwriters, dated o, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
FORD MOTOR COMPANY CAPITAL TRUST II
By: FORD MOTOR COMPANY
as Sponsor
By: ___________________________
Name:
Title:
FORD MOTOR COMPANY
By: ___________________________
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
J.P. MORGAN SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
SALOMON SMITH BARNEY INC.
By: GOLDMAN, SACHS & CO.
Acting on behalf of themselves and the
several Underwriters listed in
Schedule I hereto
By: _________________________________
(Goldman, Sachs & Co.)
SCHEDULE I
NUMBER OF NUMBER OF
UNDERWRITTEN OPTION
SECURITIES TO SECURITIES
BE TO BE
PURCHASED PURCHASED TOTAL
--------- --------- -----
UNDERWRITER
Goldman, Sachs & Co..............................................
J.P. Morgan Securities Inc.......................................
Morgan Stanley & Co. Incorporated................................
Salomon Smith Barney Inc.........................................
Total
ANNEX I
Matters to be Covered by Letters of
PricewaterhouseCoopers
Pursuant to Section 7(g) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder, and the statement in
the Registration Statement in answer to Item 10 of Form S-3 is accurate insofar
as it relates to them;
(ii) In their opinion, the audited consolidated financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Company's Annual Report on Form 10-K most recently filed with
the Commission and covered by their report included therein (the "audited
financials") comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and the
published rules and regulations under the Act or the Exchange Act, as
applicable;
(iii) On the basis of limited procedures, not constituting an
audit, which have been carried out through a specified date not more than two
business days prior to the date of each such letter, including (1) performing
the procedures specified by the American Institute of Certified Public
Accountants for a review of interim financial information as described in
Statements on Auditing Standards No. 71, "Interim Financial Information," on the
unaudited consolidated financial statements of the Company and its subsidiaries
included in the Company's Quarterly Reports on Form 10-Q filed with the
Commission from the beginning of the Company's fiscal year through the date of
such letter (the "quarterly financials"), (2) a reading of the minutes of the
meetings of the Board of Directors, Executive Committee, Finance Committee,
Audit Committee and stockholders of the Company since the date of the audited
financials, (3) inquiries of certain officials of the Company responsible for
financial and accounting matters as to transactions and events subsequent to the
date of the audited financials, and (4) such other procedures and inquiries as
may be described in each such letter, nothing has come to their attention which
has caused them to believe that:
(A) Any material modifications should be made to the quarterly
financials for them to be in conformity with generally accepted
accounting principles; or
(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
Ann. I-1
letter (or such other date as shall be mutually agreed upon by the
Company and the Representative), there was any change with respect to
the Company and its subsidiaries in the capital stock other than
changes resulting from acquisitions or issuances of shares relating to
employee benefit plans or resulting from conversions of convertible
debt of the Company's subsidiaries or resulting from purchases of
shares pursuant to the Company's announced stock repurchase program or
any net change (i) in aggregate debt (excluding inter-company debt and
deposit accounts) of any Financial Services subsidiary of the Company
which had aggregate outstanding debt of $1 billion or more as of the
date of its most recent quarterly financial statements, or (ii) in
aggregate debt (excluding inter-company debt) of the Company and any
Automotive subsidiary of the Company which had aggregate outstanding
debt of $250 million or more as of the date of its most recent
quarterly financial statements, as compared in each case with the
corresponding amounts of outstanding debt in the balance sheets of the
Company and each of such subsidiaries as of the date of their most
recent quarterly financial statements, except, in all instances, for
changes which the most recent report filed by the Company or any such
subsidiary with the Commission containing financial statements
disclosed have occurred or may occur or which are described in such
letter; and
(iv) They have performed certain specified procedures,
including comparisons with certain specified accounting records of the Company
and its subsidiaries, with respect to certain items of information included in
the Registration Statement, in the reports filed with the Commission from the
beginning of the Company's fiscal year through the date of such letter, and in
the Prospectus as amended or supplemented through the date of such letter, and
have found such items to be in agreement with such records.
Ann. I-2
ANNEX II
The Company's officers who are subject to the Lock-up Agreement
1. William Clay Ford, Jr., Chairman of the Board and Chief Executive Officer
2. Martin Inglis, Group Vice President and Chief Financial Officer
3. James Padilla, Group Vice President - North America
4. Nicholas Scheele, President and Chief Operating Officer
5. Elizabeth Acton, Vice President and Treasurer
Ann. II
ANNEX III
Form of Lock-up Agreement
Goldman, Sachs & Co.
J.P. Morgan Securities Inc.
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
As Representatives of the several
underwriters listed in Schedule I
to the Underwriting Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Re: Ford Motor Company - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the
"Representatives"), propose to enter into an Underwriting Agreement on behalf of
the several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with Ford Motor Company Capital Trust II (the "Trust"), a
statutory business trust organized under the Business Trust Act of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ss. 3801 et
seq.), and Ford Motor Company, a Delaware corporation (the "Company"), providing
for a public offering of o o% Cumulative Convertible Trust Preferred Securities
of the Trust (the "Preferred Securities") pursuant to a Registration Statement
on Form S-3 filed with the Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and sell
the Preferred Securities, and of other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the undersigned agrees
that, during the period beginning from the date of the final Prospectus covering
the public offering of the Preferred Securities and continuing to and including
the date 90 days after the date of such final Prospectus, the undersigned will
not offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of, directly or indirectly, file or cause to
be filed with the SEC a registration statement under the Act relating to, or
enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of, any shares of Common
Stock of the Company, or any options or warrants to purchase any shares of
Common Stock of the Company, or any securities convertible into, exchangeable or
exercisable for or that represent
Ann. III-1
the right to receive shares of Common Stock of the Company, whether now owned or
hereinafter acquired, owned directly by the undersigned (including holding as a
custodian) or with respect to which the undersigned has beneficial ownership
within the rules and regulations of the SEC (collectively the "Undersigned's
Securities"), whether any such transaction described above is to be settled by
delivery of shares of Common Stock of the Company or such other securities, in
cash or otherwise.
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Securities even if such Securities would be
disposed of by someone other than the undersigned. Such prohibited hedging or
other transactions would include without limitation any short sale or any
purchase, sale or grant of any right (including without limitation any put or
call option) with respect to any of the Undersigned's Securities or with respect
to any security that includes, relates to, or derives any significant part of
its value from such Securities.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Securities (i) as a bona fide gift or gifts, provided that the
donee or donees thereof agree to be bound in writing by the restrictions set
forth herein, (ii) to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that the
trustee of the trust agrees to be bound in writing by the restrictions set forth
herein, and provided further that any such transfer shall not involve a
disposition for value, or (iii) with the prior written consent of Goldman, Sachs
& Co. on behalf of the Underwriters. In addition, the undersigned may sell up to
50,000 shares of Common Stock of the Company during the period beginning on the
30th day after the date of the final Prospectus and ending on the 90th day after
the date of the final Prospectus. For purposes of this Lock-Up Agreement,
"immediate family" shall mean any relationship by blood, marriage or adoption,
not more remote than first cousin. The undersigned agrees and consents to the
entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Undersigned's Securities except in
compliance with the foregoing restrictions.
The undersigned understands that the Company, the Trust and the
Underwriters are relying upon this Lock-Up Agreement in proceeding toward
consummation of the offering. The undersigned further understands that this
Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's
heirs, legal representatives, successors, and assigns.
Very truly yours,
----------------------------------------
Name:
Title:
Ann. III-2