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Exhibit 1
MERITOR AUTOMOTIVE, INC.
[Title of Security]
UNDERWRITING AGREEMENT
[Date]
To the Representative or Representatives
named in Schedule A hereto of the
Underwriters named in Schedule B
hereto
Ladies and Gentlemen:
The undersigned Meritor Automotive, Inc., a Delaware 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 titles and
amounts set forth in Schedule A hereto (collectively, the "Purchased
Securities"), to be issued under the Indenture dated as of April 1, 1998 (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 (No. 333- ) relating to
$500,000,000 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 Purchased Securities by the
Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time may 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 of the Prospectus contemplated by Section 3(a) (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 and
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such Prospectus Supplement shall be the only supplement included in the terms
"Registration Statement" or "Prospectus". 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 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.
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(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) Each of the Company, Meritor Heavy Vehicle Systems, LLC, a
Delaware limited liability company ("HVS"), and Meritor Light Vehicle
Systems, Inc., a Delaware corporation ("LVS"), has been duly formed or
incorporated, as the case may be, is validly existing and in good standing
under the laws of the State of Delaware and has the requisite corporate
power and authority to carry on its business as currently being conducted,
to own, lease and operate its properties, and each 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.
(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
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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
Certificate of Incorporation, as amended, or By-Laws 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 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 will be entitled to the benefits of
the Indenture, which will
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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. The 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 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 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 for ▇▇▇▇▇▇ Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System ("Euroclear"),
and for Centrale de Livraison de Valeurs Mobilieres S.A. ("CEDEL") for credit to
the respective accounts at Euroclear or CEDEL 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
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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 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 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 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
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be the aggregate principal amount of 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 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 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 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
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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 stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(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
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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.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase 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 announced since that date that it is
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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
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, 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 in good standing under the laws of
the State of Delaware.
(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).
(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
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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 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 Indenture is qualified under the 1939 Act.
(viii) 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.
(ix) 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.
(x) 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.
(xi) 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 and the consummation of the transactions
contemplated herein will not conflict with or constitute a breach
of, or
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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 known to
them to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound, nor will
such action result in any violation of the provisions of the
Restated Certificate of Incorporation, as amended, or By-Laws of the
Company, or to the best of their knowledge any law, administrative
regulation or administrative or court decree applicable to the
Company.
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, 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.
(2) The favorable opinion, dated as of the Closing Time, of
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq., Senior Vice President, General Counsel and
Secretary 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,
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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 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 Certificate of Incorporation, as amended,
or By-Laws 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 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
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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.
(v) To the best of his 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.
(3) The favorable opinion or opinions, dated as of the Closing
Time, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 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
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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 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
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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 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
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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 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
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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 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
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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 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 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, but
not less than 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
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arrangements for the purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated severally to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations
of all such non-defaulting Underwriters (or in such other proportions as
the Representatives may specify), or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Purchased Securities
to be purchased pursuant to this Agreement, this Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or the Company.
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 of a default by any Underwriter or Underwriters as set forth
in this Section, either you or the Company shall have the right to postpone the
Closing Time, subject to termination of this Agreement as provided in subsection
(b) above, 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
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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,
MERITOR AUTOMOTIVE, INC.
By:
----------------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
THE UNDERWRITERS NAMED IN SCHEDULE B HERETO
By:
----------------------------------------
By:
----------------------------------------
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SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated
Representative(s):
Title of Securities:
Amount of Securities:
Price to Public:
Purchase Price:
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
Principal
Underwriter Amount
----------- ------
------
======
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EXHIBIT I
MERITOR AUTOMOTIVE, INC.
(a Delaware corporation)
[Title of Security]
DELAYED DELIVERY CONTRACT
[Date]
MERITOR AUTOMOTIVE, INC.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Meritor Automotive, Inc., a
Delaware 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
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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 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
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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)
Accepted as of the date first above written:
MERITOR AUTOMOTIVE, INC.
By:
----------------------------------------
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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)
---- ---------------------
