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Exhibit 1
ARVINMERITOR, INC.
___% Notes Due ___
UNDERWRITING AGREEMENT
________ __, 200_
To the Representative or Representatives named in Schedule A hereto of the
Underwriters named in Schedule B hereto
Ladies and Gentlemen:
The undersigned, ArvinMeritor, Inc., an Indiana corporation (the
"Company"), confirms its agreement with the several underwriters named in
Schedule B hereto (the "Underwriters") as set forth below. If the firm or firms
listed in Schedule B hereto include only the firm or firms listed in Schedule A
hereto (the "Representatives"), then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
The Company proposes to issue and sell debt securities of the title and
amount set forth in Schedule A hereto (the "Purchased Securities"), to be issued
under the Indenture dated as of April 1, 1998, as supplemented (the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3, dated as of April __, 2001
(No. 333-____), relating to $750,000,000 of debt securities, and the offering
thereof from time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "1933 Act"). Such Registration Statement has been
declared effective by the Commission, and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such Registration
Statement and the Prospectus or Prospectuses relating to the sale of the
Purchased Securities by the Company constituting a part thereof, including all
documents incorporated therein by reference, as they may from time to time be
amended or supplemented, pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1933 Act or otherwise (including by means of the
Prospectus Supplement (as defined below)), are in each case collectively
referred to herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a supplement to the Prospectus
contemplated by Section 3(a), including a preliminary form of such a supplement
to the Prospectus, if any, previously filed with the Commission pursuant to Rule
424 of the 1933 Act (collectively, a "Prospectus Supplement"), shall be deemed
to have supplemented the Prospectus only with respect to the offering of the
Purchased Securities to which it relates. If the Company elects to rely on Rule
434 under the 1933 Act, all references to the Prospectus shall be deemed to
include, without limitation, the form of prospectus and the term sheet, taken
together, provided to the Representatives by the Company in reliance on such
Rule 434. If the Company files a registration statement to register a portion of
the Purchased Securities and relies on Rule
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462(b) under the 1933 Act for such registration statement to become effective
upon filing with the Commission (the "Rule 462 Registration Statement"), then
any reference to "Registration Statement" herein shall be deemed to be to both
the registration statement referred to above (No. 333-_____) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective complied, and as of the date hereof
complies, in all material respects with the requirements of the 1933 Act, the
rules and regulations thereunder (the "Regulations"), the 1934 Act and the rules
and regulations thereunder and the 1939 Act. The Registration Statement, at the
time the Registration Statement became effective did not, and as of the date
hereof does not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the time the Registration
Statement became effective did not, and as of the date hereof does not, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply (i)
to statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus or (ii) to that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification
under the 1939 Act (Form T-1) (the "Form T-1") of the Trustee under the
Indenture.
(b) Any documents incorporated by reference in the
Registration Statement and the Prospectus subsequent to the date hereof will,
when filed with the Commission, conform in all material respects to the
requirements of the 1934 Act and the rules and regulations thereunder, and will
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 are made, not misleading.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, there has been no material adverse
change in the condition, financial or otherwise, or the results of operations of
the Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business.
(d) The Company has been duly incorporated and is validly
existing under the laws of the State of Indiana, and each of Meritor Heavy
Vehicle Systems LLC, a Delaware limited liability company (HVS), and Meritor
Light Vehicle System, Inc., a Delaware corporation (LVS), has been duly formed
or incorporated, is validly existing and is in good standing under the laws of
the State of Delaware. The Company, HVS and LVS
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each has the requisite power and authority as a corporation or a limited
liability company to carry on its business as currently being conducted, to own,
lease and operate its properties, and is duly qualified and is in good standing
as a foreign corporation or limited liability company in each jurisdiction
wherein the character of the property owned or held under lease by it makes such
qualification necessary, except in such jurisdictions where the failure so to
qualify or to be in good standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise.
(e) All of the outstanding Common Shares of HVS and all of the
outstanding Common Stock of LVS are validly issued, fully paid and nonassessable
and not subject to any preemptive rights, and are owned by the Company, free and
clear of any security interest, mortgage, pledge, claim, lien or encumbrance
(each, a "Lien"). There are no outstanding subscriptions, rights, warrants,
options, calls, commitments for sale or Liens related to or entitling any person
to purchase or otherwise to acquire any equity interests in HVS or LVS.
(f) None of the Company, HVS or LVS is in violation of its
respective certificate of incorporation or by-laws or other organizational
documents or in default under any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which any of them is a party or by which any
of them or any of their properties may be bound, except for any violations or
defaults which, individually or in the aggregate, would not have a material
adverse effect on the financial position or consolidated financial statements of
the Company and its subsidiaries taken as a whole. The execution and delivery of
this Agreement, the Delayed Delivery Contracts (as defined below), if any, and
the Indenture and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action; each of
this agreement and the Indenture are, and when duly executed and delivered in
accordance with their terms, the Delayed Delivery Contracts, if any, will be,
valid and legally binding agreements of the Company and will not conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company is a party or by which it may be
bound or to which any of the property or assets of the Company is subject, nor
will such action result in any violation of the provisions of the Restated
Articles of Incorporation, as amended, or Bylaws of the Company or, to the best
of its knowledge, any law, administrative regulation or administrative or court
decree applicable to the Company; and no consent, approval, authorization or
order of any court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this Agreement,
except such as may be required under the 1933 Act, the 1939 Act, the Regulations
or state securities or Blue Sky laws.
(g) The Purchased Securities have been duly authorized for
issuance and sale pursuant to this Agreement and, when duly executed,
authenticated and delivered pursuant to the provisions of this Agreement and of
the Indenture against payment of the consideration therefor in accordance with
this Agreement, the Purchased Securities will be
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valid and legally binding obligations of the Company enforceable in accordance
with their terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
the enforcement of creditors' rights in general and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be limited by
(i) requirements that a claim with respect to any Purchased Securities
denominated other than in U.S. dollars be converted into U.S. dollars at an
exchange rate prevailing on a date determined pursuant to applicable law or (ii)
governmental authority to limit, delay or prohibit the making of payments
outside the United States, and will be entitled to the benefits of the
Indenture, which will be substantially in the form heretofore delivered to you,
except as supplemented to reflect the terms of any one or more series of debt
securities.
(h) The Purchased Securities and the Indenture conform in all
material respects to all statements relating thereto contained in the Prospectus
and the applicable Prospectus Supplement.
(i) No strike or labor stoppage by the employees of the
Company or any subsidiary exists, or, to the knowledge of the Company, is
imminent which is expected to have a material adverse effect upon the conduct of
the business, or the earnings, operations or condition, financial or otherwise,
of the Company and its subsidiaries, considered as one enterprise.
(j) The financial statements (other than quarterly or other
unaudited interim financial statements) included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis (except as otherwise stated
therein); and the supporting schedules included or incorporated by reference in
the Registration Statement present fairly the information required to be stated
therein. Any quarterly or other unaudited interim financial statements included
or incorporated by reference in the Registration Statement and the Prospectus
have been prepared in compliance with the applicable requirements of the 1933
Act, the Regulations, the 1934 Act and the rules and regulations thereunder and
have been prepared on a basis substantially consistent (except as otherwise
stated therein) with that of the applicable audited financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus, and such unaudited financial statements contain all adjustments
necessary to present a fair statement of the results of operations for the
periods reported. Any pro forma financial information included or incorporated
by reference in the Registration Statement and the Prospectus has been prepared
in accordance with the applicable requirements of Rule 11-02 of Regulation S-X,
and in the opinion of the Company, the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
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Any certificate signed by any officer of the Company and delivered to
you or counsel for the Underwriters in connection with an offering of the
Purchased Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
SECTION 2. Purchase and Sale. The several and not joint commitments of
the Underwriters to purchase the Purchased Securities in the respective amounts
set forth on Schedule B hereto shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Purchased
Securities to be purchased by the Underwriters shall be made at the office
specified in Schedule A hereto or at such other place as shall be agreed upon by
you and the Company, on the date and at the time so specified or such other time
as shall be agreed upon by you and the Company (such time and date being
referred to as the "Closing Time"). Payment shall be made to the Company by wire
transfer to an account designated by the Company in immediately available funds
against delivery to you for the respective accounts of the Underwriters of the
Purchased Securities to be purchased by them. Such Purchased Securities shall be
in such denominations and registered in such names as you may request in writing
at least two business days prior to the Closing Time. Such Purchased Securities,
which may be in temporary form, will be made available for examination and
packaging by you on or before the first business day prior to the Closing Time.
Delivery at the Closing Time of any Purchased Securities that are in
bearer form shall be effected by delivery of a single temporary global security
without coupons (the "Global Debt Security") evidencing the Purchased Securities
that are in bearer form to a common Depositary or its nominee for the accounts
of the Euroclear System ("Euroclear"), and for Clearstream Banking, S.A.
("Clearstream Banking") for credit to the respective accounts at Euroclear or
Clearstream Banking of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to you not
later than the Closing Time, against payment of funds to the Company in the net
amount due to the Company for such Global Debt Security by the method and in the
form set forth in Schedule A hereto. The Company shall cause definitive
Purchased Securities in bearer form to be prepared and delivered in exchange for
such Global Debt Security in such manner and at such time as may be provided in
or pursuant to the Indenture; provided, however, that the Global Debt Security
shall be exchangeable for definitive Purchased Securities in bearer form only on
or after the date specified for such purpose in the Prospectus.
If authorized in Schedule A hereto, the Underwriters named therein may
solicit offers to purchase debt securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit I hereto with such changes therein as the Company may approve. Any
Purchased Securities purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein referred to as "Contract Securities." As
compensation for arranging Delayed Delivery Contracts, the
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Company will pay to you at the Closing Time, for the accounts of the
Underwriters, a fee equal to that percentage of the principal amount of Contract
Securities for which Delayed Delivery Contracts are made at the Closing Time as
is specified in Schedule A hereto. At the Closing Time the Company will enter
into Delayed Delivery Contracts with all purchasers proposed by the Underwriters
and previously approved by the Company as provided below, but not for an
aggregate principal amount of Contract Securities in excess of that specified in
Schedule A hereto. The Underwriters will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
Delayed Delivery Contracts are to be only with such investors and in
such amounts as are approved by the Company. You are to submit to the Company,
at least three business days prior to the Closing Time, the names of any
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Contract Securities to be
purchased by each of them, and the Company will advise you, at least two
business days prior to the Closing Time, of the names of the investors with
which the making of Delayed Delivery Contracts is approved by the Company and
the principal amount of Contract Securities to be covered by each such Delayed
Delivery Contract.
If the Company executes and delivers Delayed Delivery Contracts, the
aggregate principal amount of Contract Securities will be deducted from the
aggregate principal amount of the Purchased Securities to be purchased by the
several Underwriters and the principal amount of the Purchased Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of the Purchased Securities set forth opposite each
Underwriter's name in Schedule B hereto, except to the extent that the
Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company in writing; provided, however, that the aggregate
principal amount of Purchased Securities to be purchased by all Underwriters
shall be the aggregate principal amount of the Purchased Securities less the
aggregate principal amount of Contract Securities.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal amount
of the Purchased Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating in the
offering and the principal amount of the Purchased Securities which each
severally has agreed to purchase, the names of the Underwriters acting as
Representatives in connection with the offering, the price at which the
Purchased Securities are to be purchased by the Underwriters from the Company,
the initial public offering price, the selling concession and reallowance, if
any, any delayed delivery arrangements, and such other information as you and
the Company deem appropriate in connection with the offering of the Purchased
Securities. The Company will transmit copies of the Prospectus Supplement to the
Commission for timely filing pursuant
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to Rule 424 of the Regulations and will furnish to the Underwriters named
therein as many copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Purchased Securities any
event shall occur or condition exist as a result of which it is necessary to
further amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the Regulations, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant to
the 1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements.
(c) The Company will make generally available to its security
holders, in each case as soon as practicable, an earning statement (in form
complying with the provisions of Section 11(a) of the 1933 Act and the
Regulations, which need not be certified by independent certified public
accountants unless required by the 1933 Act or the Regulations) covering a
twelve month period beginning not later than the first day of the Company's
fiscal quarter next following the effective date (as defined in Rule 158 of the
Regulations) of the Registration Statement.
(d) The Company will give you notice of its intention to file
any amendment to the Registration Statement or any supplement to the Prospectus
with respect to the Purchased Securities, other than those made by the filing of
documents pursuant to the 1934 Act, will furnish you with copies of any such
amendment or supplement proposed to be filed a reasonable time in advance of
filing, and will not file any such amendment or supplement in a form to which
you or your counsel has reasonably objected.
(e) The Company will notify each of you immediately, and
confirm the notice in writing, (i) of the filing or effectiveness of any
amendment to the Registration Statement, (ii) of the mailing or the delivery to
the Commission for filing of any supplement to the Prospectus with respect to
the Purchased Securities, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or any
Prospectus Supplement, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
with respect to the Purchased Securities or for additional information with
respect thereto, (v) of the receipt by the Company of any notification with
respect to any suspension of the qualification of the Purchased Securities for
offer or sale in any state or jurisdiction of the United States or the
initiation or threatening of any proceeding for such purpose and (vi) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
The Company will make every reasonable effort to prevent the issuance of any
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stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible time.
(f) The Company will deliver to each of you as many signed and
conformed copies of the Registration Statement (as originally filed) and each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) as
you may reasonably request and will also deliver to you a conformed copy of the
Registration Statement and each amendment thereto for each of the Underwriters.
(g) The Company will endeavor, in cooperation with you, to
qualify the Purchased Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
you may designate, and will maintain such qualifications in effect for as long
as may be required for the distribution of the Purchased Securities; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or to take any action which would subject it to general consent to
service of process in any state in which it is not now qualified or not now so
subject. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Purchased Securities have been
qualified as above provided.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act.
(i) Between the date of this Agreement and the Closing Time,
the Company will not, without your prior consent, offer or sell, or enter into
any agreement to sell, any debt securities of the Company with a maturity of
more than one year (other than one or more other series of debt securities to be
issued under the Indenture, having a maturity or maturities different from the
date of maturity of the Purchased Securities, with respect to which the Company
has entered into a contract for sale on the sale day as the effective date of
this agreement).
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase the Purchased Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties on the part of
the Company herein contained, as of the date hereof and as of the Closing Time,
to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company of all of its covenants and other obligations hereunder and to the
following further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or, to the knowledge of the Company
or the Underwriters, threatened by the Commission, (ii) the rating assigned by
any nationally recognized statistical rating organization to any debt securities
of the Company as of the date of this Agreement shall not have been lowered
since that date and no such rating agency shall have publicly
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announced since that date that it is placing any debt securities of the Company
on what is commonly termed a "watch list" for possible downgrading and (iii) the
Prospectus, together with the applicable Prospectus Supplement, shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(b) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing
Time, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, 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 under the laws of the State of Indiana.
(ii) The Company has corporate power and authority
to own, lease and operate its properties and conduct its business as described
in the Registration Statement.
(iii) This Agreement and the Delayed Delivery
Contracts, if any, have been duly authorized, executed and delivered by the
Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes the valid and binding
agreement of the Company, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights in general and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and except further as enforcement thereof may be limited by (i) requirements
that a claim with respect to any Purchased Securities denominated other than in
U.S. dollars be converted into U.S. dollars at an exchange rate prevailing on a
date determined pursuant to applicable law or (ii) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(v) The Purchased Securities have been duly
authorized by all necessary corporate action and, when duly executed and
authenticated as specified in the Indenture and delivered against payment
therefor pursuant to this Agreement and any applicable Delayed Delivery
Contract, will be valid and binding obligations of the Company, enforceable in
accordance with their terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting the enforcement of creditors' rights in general and general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except further as enforcement thereof may
be limited by (i) requirements that a claim with respect to any Purchased
Securities denominated other than in U.S. dollars be converted into U.S. dollars
at an exchange rate prevailing on a date determined
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pursuant to applicable law or (ii) governmental authority to limit, delay or
prohibit the making of payments outside the United States, and will be entitled
to the benefits of the Indenture.
(vi) The Indenture and the Purchased Securities
conform in all material respects to the descriptions thereof contained in the
Prospectus and the applicable Prospectus Supplement.
(vii) The Registration Statement is effective
under the 1933 Act and, to the best of their knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(viii) The Registration Statement and the
Prospectus (other than the financial statements and other financial and
statistical data included or incorporated by reference therein, as to which no
opinion need be rendered) comply as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act (other than Form T-1, as to which no
opinion need be rendered) and the Regulations.
(ix) Each document, if any, filed pursuant to the
1934 Act (other than the financial statements and other financial and
statistical data included or incorporated by reference therein, as to which no
opinion need be rendered) and incorporated by reference in the Prospectus,
complied when so filed as to form in all material respects with the 1934 Act and
the rules and regulations thereunder.
(x) No consent, approval, authorization or order
of any court or governmental authority or agency is required in connection with
the issue and sale by the Company of the Purchased Securities to the
Underwriters, except such as may be required under the 1933 Act, the
Regulations, the 1939 Act and any state securities laws, and to the best of
their knowledge and information, the execution and delivery of this Agreement,
the Delayed Delivery Contracts, if any, and the Indenture.
Such counsel shall also state that although such counsel does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except as and to the
extent described in paragraph (vi) above), nothing has come to their attention
that would lead them to believe that the Registration Statement (other than the
financial statements and other financial and statistical data included or
incorporated by reference therein, as to which no view need be rendered), as of
the time it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus, as amended
or supplemented at the Closing Time (other than the financial statements and
other financial and statistical data included or incorporated by reference
therein and the Form T-1, as to which no view need be rendered), contains an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(2) The favorable opinion, dated as of the Closing
Time, of the General Counsel or an Assistant General Counsel of the Company, in
form and substance satisfactory to you, to the effect that:
(i) The Company is duly qualified as a foreign
corporation and is in good standing in the State of Michigan and in each other
jurisdiction wherein the character of the property owned or held under lease by
it makes such qualification necessary, except in such jurisdictions where the
failure so to qualify or to be in good standing will not subject the Company to
any liability material to the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise.
(ii) Each of HVS and LVS is a subsidiary of the
Company, has been duly formed or incorporated, as the case may be, and is
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified and is in good standing as a foreign limited liability
company or corporation, as the case may be, in each jurisdiction wherein the
character of the property owned or held under lease by it makes such
qualification necessary, except in such jurisdictions where the failure so to
qualify or to be in good standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise; the outstanding Common Shares of HVS
and the outstanding Common Stock of LVS are validly issued, fully paid and
nonassessable and are owned by the Company free and clear of any Liens.
(iii) The execution and delivery of this
Agreement, the Delayed Delivery Contracts, if any, and the Indenture and the
consummation of the transactions contemplated herein will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or, to the best of his or her knowledge,
by which it or any of them may be bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Restated Articles of
Incorporation, as amended, or Bylaws of the Company or any law, administrative
regulation or administrative or court decree applicable to the Company.
(iv) There is no litigation or governmental
proceeding pending or, to the best of his or her knowledge, threatened against
the Company or any of its subsidiaries which would affect the subject matter of
this Agreement and the Delayed Delivery Contracts, if any, or which is required
to be disclosed in the Prospectus which is not adequately disclosed therein; and
except as may be disclosed in the Prospectus, there is no such litigation or
governmental proceeding which would have a material adverse effect on the
financial position or consolidated financial statements of the Company and its
subsidiaries as a whole.
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(v) To the best of his or her knowledge, there are
no contracts which are required to be filed as exhibits to the Registration
Statement which are not so filed or which are required to be disclosed in the
Prospectus which are not adequately disclosed therein.
(vi) The Indenture is qualified under the ▇▇▇▇
▇▇▇.
(3) The favorable opinion or opinions, dated as of the
Closing Time, of __________________, counsel for the Underwriters, with respect
to the incorporation of the Company, the validity of the Purchased Securities
delivered at the Closing Time, the Registration Statement, the Prospectus and
such other related matters as the Representatives may require.
(c) At the Closing Time there shall not have been, since the
date of this Agreement, any material adverse change in the condition, financial
or otherwise, of the Company and its subsidiaries considered as one enterprise,
or any development involving a prospective material adverse change in or
affecting particularly the financial condition of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and you shall have received a certificate of the
Chief Executive Officer or a Vice President of the Company, dated as of the
Closing Time, to the effect that there has been no such material adverse change
or prospective change and to the effect that the representations and warranties
of the Company contained in Section 1 are true and correct as of the Closing
Time.
(d) You shall have received from Deloitte & Touche LLP a
letter, addressed to you and dated as of the Closing Time and delivered at such
time, in form satisfactory to you and concerning such matters as you shall
reasonably request.
(e) At the Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Purchased Securities as herein contemplated and related proceedings or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Purchased Securities as herein contemplated shall be satisfactory in
form and substance to you and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other party
except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Purchased Securities
to the Underwriters, (iii) the fees and
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disbursements of the Company's counsel and accountants, the Trustee under the
Indenture and the Trustee's counsel, (iv) the qualification of the Purchased
Securities under securities laws in accordance with the provisions of Section
3(g), including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky Survey and Legal Investment Survey, (v) the printing
and delivery to the Underwriters in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto, and of the Prospectus,
(vi) the printing and delivery to the Underwriters of copies of the Indenture
and any Blue Sky Survey and Legal Investment Survey, (vii) the fees of rating
agencies and (viii) the fees and expenses, if any, incurred in connection with
the listing of the Purchased Securities on the New York Stock Exchange, if any.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters, reasonably incurred in
connection with the subject matter of this Agreement. The Company shall not in
any event be liable to any of the Underwriters for loss of anticipated profits
from the transactions contemplated by this Agreement.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, unless such untrue
statement or omission or such alleged untrue statement or omission was made (i)
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus or (ii) in that part of the
Registration Statement which constitutes the Form T-1;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement of
any litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the Company; and
(iii) subject to subparagraph (c), against any and all expense
whatsoever as and when incurred (including the fees and disbursements of counsel
chosen by you) reasonably incurred in investigating, preparing or defending
against any litigation, or
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investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above.
This indemnity is subject to the condition that, insofar as it relates
to any untrue statement or omission, or any alleged untrue statement or
omission, made in the Prospectus, it shall not inure to the benefit of any
Underwriter from whom the person asserting the claim purchased the Purchased
Securities (or to the benefit of any person who controls such Underwriter) if a
copy of the Prospectus (excluding documents incorporated by reference therein),
as amended or supplemented prior to the written confirmation mentioned below,
was not delivered to such person at or prior to the written confirmation of the
sale of such Purchased Securities and the untrue statement or omission or
alleged untrue statement or omission was corrected in the Prospectus as
supplemented or amended at the time of such confirmation.
Insofar as this indemnity may permit indemnification for liabilities
under the 1933 Act of any person who is a partner of an Underwriter or who
controls an Underwriter within the meaning of Section 15 of the 1933 Act and
who, at the date of this Agreement, is a director, officer or controlling person
of the Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental investigation or
proceeding) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding subsections (a)
and (b), such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
but failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of subsections (a) and (b)
above. The indemnifying party shall have the right to retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements as incurred of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any
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impleaded parties) include both the indemnifying party and the indemnified party
and the indemnified party shall have reasonably concluded that representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
periodically on a reasonable basis as agreed by the parties. Such separate firm
shall be designated in writing by you in the case of parties indemnified
pursuant to subsection (a) of this Section and by the Company in the case of
parties indemnified pursuant to subsection (b) of this Section. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), settle any pending or threatened
proceeding in respect of which indemnification could have been sought hereunder
by such indemnified party (whether or not the indemnified party is an actual
party to such claim or action) unless such settlement includes an unconditional
release of such indemnified party from all liability on the claims that are the
subject matter of such action.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters of the Purchased Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of such
Underwriters in respect of such offering in such proportions as will reflect the
relative benefits from the offering of such Purchased Securities received by the
Company on the one hand and by such Underwriters on the other hand, provided
that if the Purchased Securities are offered by the Underwriters at an initial
public offering price set forth in a Prospectus Supplement, the relative
benefits shall be deemed to be such that the Underwriters shall be responsible
for that portion of the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the underwriting discount appearing
in such Prospectus Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations and Warranties to Survive Delivery. All
representations and warranties contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by
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or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Purchased Securities to the
Underwriters.
SECTION 9. Termination. You may terminate this Agreement, immediately
upon notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the date of this Agreement, any material adverse change in
the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your reasonable judgment, is material and adverse, which makes it
impracticable to market the Purchased Securities or enforce contracts for the
sale of the Purchased Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on either the New York Stock Exchange or the Nasdaq
National Market has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities. In the event of any such termination, the
provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7, and the provisions of Section 8
and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating
in an offering of the Purchased Securities shall fail at the Closing Time to
purchase the Purchased Securities which it or they are obligated to purchase
hereunder (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements satisfactory to the Company for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth. If, however, during such 24 hours you shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then this Agreement may be terminated by the Company, upon notice to you within
a further period of 24 hours. If in such case the Company shall not elect to
terminate this Agreement, it shall have the right, irrespective of such default:
(a) to require the non-defaulting Underwriters named in this Agreement
to purchase the respective principal amounts of Purchased Securities that they
had severally agreed to purchase hereunder and, in addition, the Defaulted
Securities up to a principal amount thereof equal to one-ninth (1/9) of the
respective principal amounts of Purchased Securities that such non-defaulting
Underwriters have otherwise agreed to purchase hereunder, and/or
(b) to procure one or more others to purchase, upon the terms herein
set forth, the Defaulted Securities, or that portion thereof that the remaining
Underwriters shall not be obligated to purchase pursuant to the foregoing clause
(a).
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement. In the event that the Company shall be entitled to but shall not
elect to exercise its rights under clause
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(a) and/or (b), the Company shall be deemed to have elected to terminate this
Agreement. In the event of a default by any Underwriter or Underwriters as set
forth in this Section, if the Company does not elect to terminate this
Agreement, either you or the Company shall have the right to postpone the
Closing Time for a period of time not exceeding seven days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at your address set forth in Schedule A
hereto; notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, attention of the Secretary with a copy to the
Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Purchased
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by the laws
of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
ARVINMERITOR, INC.
By:______________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
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CONFIRMED AND ACCEPTED,
as of the date first above written:
THE UNDERWRITERS NAMED IN SCHEDULE B HERETO
By: _________________________
By: _________________________
[Name]
[Title]
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SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated _______ __, 200_
Representative(s):
Title of Securities: ___% Notes Due _____
Amount of Securities: $____________
Price to Public: _____% and accrued interest, if any, from ________
Purchase Price: _____% and accrued interest, if any, from ________
Delayed Delivery -
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Closing -
Office for delivery of Securities:
Office for payment for Securities:
Date and time of Closing:
Office for checking Securities:
Underwriting commissions or other compensation:
Addresses for notices per Section 11:
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SCHEDULE B
Underwriting Agreement dated ___________, 200_
Underwriter Principal Amount of Notes
----------- -------------------------
Total $
============
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EXHIBIT I
ARVINMERITOR, INC.
(an Indiana corporation)
[Title of Security]
DELAYED DELIVERY CONTRACT
[Date]
ARVINMERITOR, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from ArvinMeritor, Inc., an
Indiana corporation (the "Company"), and the Company agrees to sell to the
undersigned on _________________, ____ (the "Delivery Date"), _____________
principal amount of the Company's _______________________ (the "Securities"),
offered by the Company's Prospectus dated ___________, ____, as supplemented by
its Prospectus Supplement dated __________________, ____, receipt of which is
hereby acknowledged, at a purchase price of ___% of the principal amount
thereof, plus accrued interest from _________________, ____, to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company on the Delivery Date by wire
transfer of immediately available funds to an account designated by the Company,
upon delivery to the undersigned, at the office of [name and address] or at such
other place as the undersigned and the Company shall agree, of the Securities to
be purchased by the undersigned in definitive form and in such authorized
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _______________, ____,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement dated ______________, ____, between the Company and the
Underwriters less the principal amount thereof covered by this and other similar
contracts. The obligation of the undersigned to take delivery of and make
payment for Securities shall not be affected by the failure of any purchaser to
take delivery of and
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make payment for Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to you that its investment in
the Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which govern such
investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$_____________ and that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at the
address set forth below. This will become a binding contract between the Company
and the undersigned when such copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-------------------------
(Name of Purchaser)
By:______________________
(Title)
-------------------------
-------------------------
(Address)
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Accepted as of the date first above written:
ARVINMERITOR, INC.
By:_________________________
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (including Area Code)
---- ---------------------
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