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EXHIBIT 1.3
Lear Seating Corporation
1994 Common Stock Offering
Power of Attorney and Custody Agreement
Selling Stockholder
New York, New York
, 1994
Marc E. Perlmutter, Esq.
Richard S. Borisoff, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019
Dear Messrs. Perlmutter and Borisoff:
The undersigned stockholder, FIMA Finance Management Inc. ("the
Stockholder"), has delivered to one of you:
(i) one or more certificates (collectively the "Common Stock
Certificates") in negotiable form representing the aggregate number of
shares, after giving effect to the 33-for-1 stock split, of Common
Stock, $.01 par value (the "Common Stock") of Lear Seating Corporation,
a Delaware corporation (the "Company"), set forth opposite the
Stockholder's name on Schedule I hereto; and
(ii) duly executed stock powers with respect to all Common Stock
Certificates, with signatures guaranteed
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by a bank or trust company or by a member firm of the New York Stock
Exchange.
Pursuant to Underwriting Agreements (the "Underwriting
Agreements") to be entered into between the Company, the Stockholder and
respectively, (x) Lehman Brothers Inc. ("Lehman Brothers"), Kidder, Peabody &
Co. Incorporated, Morgan Stanley & Co. Incorporated and Wertheim Schroder & Co.
Incorporated, as representatives of the several United States underwriters (the
"U.S. Underwriters"), and (y) Lehman Brothers International (Europe), Kidder,
Peabody International Limited, Morgan Stanley & Co. International Limited and
Wertheim Schroder International Limited, as lead managers of the several
international managers (together with the U.S. Underwriters, the
"Underwriters"), the Underwriters propose to offer to the public, as part of a
public offering of Common Stock in which the Company will also sell shares of
Common Stock (the "Offering"), the number of shares of Common Stock set forth
in the column entitled "Amount" in Schedule II hereto from the Stockholder (all
shares set forth in the column entitled "Amount" in Schedule II being
hereinafter referred to as "Shares"). In connection with the proposed
Offering, the Company has filed a Registration Statement on Form S-1 (File No.
33-52565)
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(the "Registration Statement") with the Securities and Exchange Commission
under the Securities Act of 1933.
1. For purposes of the Offering, and in order to ensure the
orderly sale of the Shares to the Underwriters, each of you is hereby appointed
agent and attorney-in-fact for the Stockholder and instructed and authorized to
hold the Common Stock Certificates (collectively the "Certificates") as
custodian for the account of the Stockholder and to dispose of them in
accordance with this Power of Attorney and Custody Agreement. In furtherance
of the foregoing, each of you is authorized and directed on behalf of the
Stockholder:
(a) to enter into Underwriting Agreements providing for, among
other things, the sale of the Shares to the Underwriters and the
indemnification of the Underwriters for certain liabilities (such
Underwriting Agreements to be substantially in the form attached
hereto);
(b) to establish the purchase price and the initial offering
price of the Shares; provided, however, that the purchase price per
Share shall not be less than the price per share paid to the Company in
the Offering, and provided the initial offering price per share is not
less than $[ ] per share;
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(c) to cause (i) Common Stock Certificates representing the
aggregate number of shares set forth opposite the Stockholder's name in
the column entitled "Amount" in Schedule II and (ii) duly executed stock
powers with respect to such Certificates, with signatures guaranteed by
a bank or trust company or by a member firm of the New York Stock
Exchange, to be delivered to the Underwriters on the First Closing Date
(as defined in the Underwriting Agreements, such Closing Date being
hereinafter referred to as the "First Closing Date");
(d) to use your best efforts to cause the Common Stock
Certificates delivered on the First Closing Date to be transferred to
and registered in such names on the books of the Company as are
specified pursuant to the Underwriting Agreements and to make such
Certificates available for inspection, checking and packaging by the
Underwriters prior to the First Closing Date as required under the
Underwriting Agreements;
(e) to pay on the First Closing Date all applicable state
transfer taxes, if any, involved in the transfer of the Shares to the
Underwriters on such Closing Date;
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(f) to accept payment, net of underwriting discounts, for the
Shares on behalf of the Stockholder on the Closing Date, to give receipt
for such payment, and, after reimbursement of expenses incurred by
either of you for which the Stockholder is liable, including all
applicable state transfer taxes, to remit to the Stockholder such
payment for such Shares;
(g) to return to the Stockholder all Common Stock Certificates
for shares attributable to the Stockholder not sold to the Underwriters;
and
(h) to make, execute, acknowledge and deliver all orders,
receipts, notices, requests, instructions, letters of transmittal,
certificates, letters and other writings and communications to the
Securities and Exchange Commission, the Underwriters, the Company and
the Transfer Agent, and, in general, to do all things and take all
actions that either of you in your discretion may consider necessary or
proper in connection with or to carry out the sale of the Shares to the
Underwriters, as fully as could the Stockholder if personally present
and acting.
2. This Power of Attorney and Custody Agreement and all
authority conferred hereby and instructions hereby given, are granted,
conferred and made subject to the
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interests of the Underwriters and the Company under the Underwriting Agreements
and in consideration of those interests, and for the purpose of completing the
transactions contemplated by the Underwriting Agreements, this Power of
Attorney and Custody Agreement and all authority conferred hereby shall be
irrevocable, shall be deemed to be coupled with an interest and shall not be
terminated by operation of law, by any acts of the Stockholder, the
Underwriters or the Company or any other person, or the occurrence of any other
event, including the death or incapacity of the Stockholder or the commencement
of any bankruptcy, insolvency or similar proceedings involving the Stockholder.
If any such event should occur before the delivery of the Shares pursuant to
the Underwriting Agreements, Certificates representing the Shares shall be
delivered by or on behalf of the Stockholder and all other actions contemplated
hereby shall be consummated in accordance with the terms and conditions of the
Underwriting Agreements and this Power of Attorney and Custody Agreement as if
such event had not occurred, regardless of whether either of you or any other
person shall have received notice of such event. Any actions taken by either
of you pursuant to this Power of Attorney and Custody Agreement shall be as
valid as if such acts or events had not occurred.
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Notwithstanding the foregoing, (i) if the Underwriting Agreements
are not executed prior to , 1994, (ii) if Lehman Brothers notifies
either of you prior to that time that the Underwriting Agreements will not be
executed or (iii) if the Underwriting Agreements are terminated prior to the
delivery of the Shares thereunder, then the Stockholder shall have the power,
by giving written notice to you, to terminate this Power of Attorney and
Custody Agreement, subject, however, to all lawful action done or performed by
both of you pursuant hereto prior to your actual receipt of such notice, and
except that the liability of the Stockholder for all expenses that each of you
shall incur, other than those expenses the Company is obligated to pay, in
connection herewith shall survive any termination thereof and both of you shall
return this Power of Attorney and Custody Agreement and the applicable
Certificates to the Stockholder.
3. The Stockholder hereby represents, warrants and agrees that:
(a) the Stockholder has duly executed and delivered this Power of
Attorney and Custody Agreement and all authorizations and consents
necessary for the execution and delivery hereof by the Stockholder and
for the execution and delivery of the Underwriting
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Agreements by either of you on behalf of the Stockholder have been
given; and this Power of Attorney and Custody Agreement is, and upon
execution will be, valid, binding and enforceable against the
Stockholder in accordance with its terms, except as may be limited by
bankruptcy, moratorium or similar laws.
(b) the Stockholder now has good, valid and marketable title to
the shares represented by the Certificates, and on the First Closing
Date will have such title to all such shares, free and clear in each
case of all liens, encumbrances, equities and claims whatsoever, and the
Stockholder now has, and at the time of execution of the Underwriting
Agreements and on the First Closing Date will have, full right, power
and authority to enter into the Underwriting Agreements and to sell,
assign, transfer and deliver such shares on the First Closing Date
thereunder; the Stockholder has no knowledge of any fact that would
impair the validity of the Certificates; and upon delivery of such
shares under the Underwriting Agreements and payment therefor pursuant
thereto, the Underwriters will acquire valid and marketable title to
such shares free and clear of any liens, encumbrances, equities and
claims whatsoever;
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(c) the Stockholder has reviewed the Registration statement and
the form of Underwriting Agreements attached hereto; and (i) the
statements with respect to the Stockholder under the heading "Principal
and Selling Stockholders" in the Registration Statement are true and
complete in all material respects and the Stockholder will promptly
advise you if they cease to be so, and (ii) the representations and
warranties to be made by the Stockholder in the Underwriting Agreements
are true and correct and do not omit to state any fact required to be
stated therein or necessary to make the statements therein not
misleading; and
(d) both of you will be entitled to rely on the opinions of
counsel provided to the Underwriters pursuant to Section 7(f) of the
Underwriting Agreements, which will specifically allow your reliance
thereon.
4. Until payment of the purchase price for the Shares has been
made to you pursuant to the Underwriting Agreements, the Stockholder shall
remain the owner of any and all shares of Common Stock and shall have the right
to vote such shares and to receive all dividends and distributions on such
shares to the extent the Stockholder
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had such rights prior to entering into this Power of Attorney and Custody
Agreement.
5. Both of you shall be entitled to act and rely upon any
statement, request, notice or instructions given in writing to either of you by
Lehman Brothers with respect to each Closing Date or with respect to the
non-execution or termination of the Underwriting Agreements, not only as to the
authorization, validity and effectiveness thereof, but also as to the truth and
accuracy of any information contained therein, so long as both of you believe
it is genuine.
6. It is hereby agreed and understood (i) that you will receive
no compensation from the Stockholder for your responsibilities hereunder, (ii)
that both of you assume no responsibility or liability to any person under this
Power of Attorney and Custody Agreement other than to deal with the
Certificates and other instruments deposited with you hereunder or issuable
upon conversion thereof and the proceeds from the sale of shares of Common
Stock represented thereby in accordance with the provisions hereof and (iii) no
implied duties or obligations shall be read into this Power of Attorney and
Custody Agreement. Each of you shall not be liable for any error of judgment
or for any act done or omitted or for any mistake of fact or law except
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for your own gross negligence or bad faith. The Stockholder severally and not
jointly hereby agrees to hold each of you and each of your partners, members
and employees harmless from any and all loss, damage or liability or expense
that either of you or any of them may sustain or incur as a result of any
action taken in good faith hereunder and not due to such person's gross
negligence.
7. This Power of Attorney and Custody Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
8. This Power of Attorney and Custody Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without respect to the choice of law provisions thereof.
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Please acknowledge your acceptance of the provisions hereof and
acknowledge your custody of the Certificates by executing and returning the
enclosed copy hereof to the Stockholder.
Very truly yours,
FIMA FINANCE MANAGEMENT
INC. 1/
by:
Name:
Title:
Subscribed and sworn to
before me this ___ day
of _________, 1994.
Notary Public
1/ The name of the Stockholder shall be exactly as such Stockholder's
name appears on the Common Stock Certificates.
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ACKNOWLEDGMENT AND RECEIPT
Marc E. Perlmutter, Esq., as of the date first above written,
hereby acknowledges acceptance of his duties under the foregoing Power of
Attorney and Custody Agreement and acknowledges receipt of the Certificates
representing the shares set forth on Schedule I and stock powers relating
thereto.
Marc E. Perlmutter, Esq.
Richard S. Borisoff, Esq., as of the date first above written,
hereby acknowledges acceptance of his duties under the foregoing Power of
Attorney and Custody Agreement and acknowledges receipt of the Certificates
representing the shares set forth on Schedule I and stock powers relating
thereto.
Richard S. Borisoff, Esq.
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Schedule I
Shares* Deposited Under Agreement
Stockholder Common Stock
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FIMA Finance Management Inc.
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* Represents shares of Common Stock after giving effect to the approximately
33-for-1 stock split.
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Schedule II
Shares of Common Stock to be Sold
Stockholder Amount
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FIMA Finance Management
Inc.