Exhibit 1.1
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
(A DELAWARE CORPORATION)
$ 150,000,000
8% SENIOR NOTES DUE 2019
TERMS AGREEMENT
Dated: September 23, 1999
▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We (the "Representative") understand that ▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc., a
Delaware corporation (the "Company"), proposes to issue and sell $150,000,000
aggregate principal amount of its 8% Senior Notes due 2019 (the "Notes")
(collectively, the "Underwritten Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the Company has
agreed to sell to the underwriters named below (the "Underwriters"), and the
Underwriters have agreed, severally and not jointly, to purchase from the
Company, the respective amounts of Notes set forth below opposite their
respective names at the purchase prices set forth below.
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
------------------------------------------------------ -----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 82,500,000
Banc One Capital Markets, Inc. 22,500,000
Banc of America Securities LLC 22,500,000
Chase Securities Inc. 22,500,000
___________
Total..... $150,000,000
The Underwritten Securities shall have the following terms:
Title of Debt Securities: 8% Senior Notes due 2019
Currency: U.S. dollars
Principal amount
to be issued: $150,000,000
Current ratings: ▇▇▇▇▇'▇ Investors Service, Inc. Baa2;
Standard & Poor's Corporation BBB+.
Interest rate: 8%
Spread: 0.875%
Interest Payment Dates: April 1 and October 1, beginning April 1, 2000
Regular Record Dates: March 15 or September 15
Stated Maturity Date: October 1, 2019
Optional Redemption: Redemption at option of Company, in whole at any
time, or in part from time to time, at a redemption
price equal to the greater of: (1) 100% of the
principal amount of the Notes and (2) the sum of the
present values of the remaining scheduled payments of
principal and interest discounted to the date of
redemption on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the
applicable Treasury Rate plus 25 basis points plus,
in either case, accrued and unpaid interest on the
principal amount being redeemed to the redemption
date.
Sinking fund
requirements: None
Initial public offering
price: 99.939%, plus accrued interest, if any, or amortized
original issue discount, if any, from September 28,
1999.
Purchase price: 99.064%, plus accrued interest, if any, or amortized
original issue discount, if any, from September 28,
1999 (payable in immediately available funds).
Form: Book-entry represented by global securities
deposited with The Depository Trust Company.
Ranking: Senior, unsecured obligations of the Company.
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Closing Date and
Location: September 28, 1999, at the offices of Shearman
& Sterling, New York, New York.
All the provisions contained in the agreement attached as Annex A hereto
entitled "▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc.--Debt Securities--Underwriting Agreement
Basic Provisions" are hereby incorporated by reference in their entirety herein
and shall be deemed to be a part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
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If the foregoing is in accordance with your understanding of our
agreement, please sign a copy of this Terms Agreement in the space set forth
below and return the signed copy to us.
Very truly yours,
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director
For themselves and as Representative of the
other Underwriters named herein.
Accepted:
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Acting Treasurer
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▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC. ANNEX A
(A DELAWARE CORPORATION) to Terms
Agreement
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell up to $350,000,000 aggregate principal amount of its
senior debt securities (the "Senior Securities") or its subordinated debt
securities (the "Subordinated Securities"), or both, from time to time on terms
to be determined at the time of sale. The Senior Securities will be issued under
an indenture dated as of September 23, 1999 (the "Senior Indenture") between the
Company and Chase Manhattan Trust Company, National Association, trustee. The
Subordinated Securities, if any, would be issued under an indenture to be
entered into (the "Subordinated Indenture") between the Company and a trustee to
be determined. Each issue of Senior Securities, and Subordinated Securities may
vary, as applicable, as to aggregate principal amount, maturity date, interest
rate or formula and timing of payments thereof, redemption provisions and
sinking fund requirements, if any, and any other variable terms which the Senior
Indenture or the Subordinated Indenture, as the case may be, contemplates may be
set forth in the Senior Securities and Subordinated Securities as issued from
time to time. The Senior Securities and the Subordinated Securities may be
offered either together or separately.
This is to confirm the arrangements with respect to the purchase of
Underwritten Securities from the Company by the Representatives and the several
Underwriters listed in the applicable terms agreement entered into between the
Representatives and the Company of which this Underwriting Agreement is Annex A
thereto (the "Terms Agreement"). With respect to any particular Terms Agreement,
the Terms Agreement, together with the provisions hereof incorporated therein by
reference, is herein referred to as the "Agreement." Terms defined in the Terms
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-84931),
including a prospectus, relating to certain of the Senior and/or Subordinated
Securities (including the Underwritten 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"), and has filed such amendments thereto, including a
Post-Effective Amendment No. 1 filed with the Commission on September 21, 1999
(the "Post-Effective Amendment"), as may have been required to the date of the
Terms Agreement. Such registration statement as amended by the Post-Effective
Amendment was declared effective by the Commission on September 21, 1999, and
the Senior Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). As provided in Section 3(a), a prospectus
supplement reflecting the terms of the Underwritten Securities, the terms of the
offering thereof and the other matters set forth therein has been prepared and
will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed after the date hereof pursuant to Rule 424,
is herein referred to as the "Prospectus Supplement." Such registration
statement, as amended by the Post-Effective Amendment,
including the exhibits thereto and the documents incorporated by reference
therein, is herein called the "Registration Statement," and the basic prospectus
included therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement, is herein called the
"Prospectus," except that, if such basic prospectus is amended or supplemented
on or prior to the date on which the Prospectus Supplement is first filed
pursuant to Rule 424, the term "Prospectus" shall refer to the basic prospectus
as so amended or supplemented and as supplemented by the Prospectus Supplement,
in either case including the documents filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
that are incorporated by reference therein. The term "preliminary prospectus
supplement" means each preliminary prospectus supplement specifically relating
to the Underwritten Securities and previously filed pursuant to Rule 424(b),
including all documents incorporated by reference therein filed under the ▇▇▇▇
▇▇▇. If the Company files a registration statement with the Commission pursuant
to Rule 462(b) (the "Rule 462(b) Registration Statement") of the rules and
regulations of the 1933 Act (the "1933 Act Regulations"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement.
SECTION 1. Representations and Warranties. The Company represents and
warrants to the Representatives and to each Underwriter named in a Terms
Agreement as of the date thereof and as of the related Closing Time (each a
"Representation Date"), as follows:
(a) The Company meets the requirements for use of Form S-3 under the
1933 Act and the Registration Statement and the Prospectus, at the time
the Post-Effective Amendment became effective and as of the applicable
Representation Date, complied and will comply in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations"). The Registration Statement, at the time
the Post-Effective Amendment became effective and as of the applicable
Representation Date, did not, 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 not misleading. The
Prospectus, at the time the Post-Effective Amendment became effective and
as of the applicable Representation Date, did not, and will 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 light of the
circumstances under which they were made, not misleading; except that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives expressly for use in the Registration Statement or
Prospectus or to that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification under the 1939
Act (Form T-1) of the Trustees under the Senior Indenture.
(b) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
or hereafter are filed with the Commission, complied and will comply, as
the case may be, in all material respects
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with the requirements of the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations") and, when read together and with
the other information in the Prospectus, at the time the Post-Effective
Amendment became effective and at the time any amendments thereto become
effective or hereafter during the period specified in Section 3(b), did not
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) (A) Deloitte & Touche LLP, who have certified the financial
statements of the Company and the schedules included or incorporated by
reference in the Registration Statement and Prospectus and (B) KPMG Peat
Marwick, who have certified the financial statements of NSK-Warner
Kabushiki Kaisha ("NSK-Warner") included or incorporated by reference in
the Registration Statement and the Prospectus, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and any
Terms Agreement; and each of this Agreement and any Terms Agreement has
been duly authorized, executed and delivered by the Company.
(e) The consolidated financial statements and the related notes of
the Company and its Subsidiaries (as defined below) included or
incorporated by reference in the Registration Statement present fairly the
consolidated financial position of the Company and its Subsidiaries as of
the dates indicated and the consolidated results of operations and cash
flows of the Company and its Subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved (except as set forth in the notes thereto) and
subject, in the case of any interim statements, to normal year-end audit
adjustments. The financial statement schedules, if any, included in the
Registration Statement present fairly the information required to be
stated therein. The selected financial data included or incorporated by
reference in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
consolidated financial statements included or incorporated by reference in
the Registration Statement. The pro forma financial information included
or incorporated by reference in the Prospectus present fairly the
information shown therein, has been prepared in accordance with the
applicable requirements of Rule 11-02 of Regulation S-X, has been properly
compiled on the pro forma bases described therein, 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.
(f) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Prospectus.
The Company is duly qualified to transact business as a
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foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and the Subsidiaries, considered as
one enterprise.
(g) The Company's only subsidiaries are set forth in Annex B hereto
(each such corporation is referred to herein as a "Subsidiary" and,
collectively, the "Subsidiaries"). Each Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with corporate power and authority under
such laws to own, lease and operate its properties and conduct its
business; and each Subsidiary is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and the Subsidiaries, considered as
one enterprise. All of the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully paid
and non-assessable and are owned by the Company, directly or through one
or more of the Subsidiaries, in the percentages set forth in Exhibit B
hereto, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
(h) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization."
(i) The Senior Indenture has been duly authorized by the Company,
will be substantially in the form heretofore delivered to you and, when
duly executed and delivered by the Company and the Trustee, will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Indenture conforms to the
descriptions thereof in the Prospectus.
(j) The Underwritten Securities have been duly authorized for
issuance and sale pursuant to this Agreement (or will have been so
authorized prior to each issuance of Underwritten Securities) and, when
executed, authenticated, issued and delivered in the manner provided for
in the Indenture and sold and paid for as provided in this Agreement, the
Underwritten Securities will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
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rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or law); and the Underwritten Securities and the
Senior Indenture conform to the descriptions thereof in the Prospectus.
(k) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive rights of any stockholder of the Company.
(l) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as described in the
Registration Statement and the Prospectus, there has not been (i) any
material adverse change in the condition (financial or otherwise), results
of operations, business affairs or business prospects of the Company and
the Subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, (ii) any transaction entered into by the
Company or any Subsidiary, other than in the ordinary course of business,
that is material to the Company and the Subsidiaries, considered as one
enterprise, or (iii) any dividend or distribution of any kind declared,
paid or made by the Company on its capital stock, other than regular
quarterly cash dividends declared or paid on its Common Stock.
(m) Neither the Company nor any of its Subsidiaries is in violation
of its certificate of incorporation or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any indenture, mortgage, loan agreement, note, lease or other agreement
or instrument to which it is a party or by which it may be bound or to
which any of its properties may be subject, except for such defaults that
would not have a material adverse effect on the condition (financial or
otherwise), results of operations, business affairs or business prospects
of the Company and the Subsidiaries, considered as one enterprise. The
execution and delivery of this Agreement and the Indenture by the Company,
the issuance and delivery of the Underwritten Securities, the consummation
by the Company of the transactions contemplated in this Agreement and in
the Registration Statement and compliance by the Company with the terms of
this Agreement and the Indenture, have been duly authorized by all
necessary corporate action on the part of the Company and do not violate
and will not result in any violation of the certificate of incorporation
or by-laws of the Company or any Subsidiary, and do not and will not
conflict with, or result in a breach of any of the terms or provisions of,
or constitute a 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 Subsidiary under (i) any indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which the Company or any
Subsidiary is a party or by which any of them may be bound or to which any
of their properties may be subject, except for such conflicts, breaches or
defaults or liens, charges or encumbrances that in the aggregate would not
have a material adverse effect on the condition (financial or otherwise),
results of operations, business affairs or business prospects of the
Company
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and the Subsidiaries, considered as one enterprise or (ii) any existing
applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Subsidiary or any of their
respective properties, except for such conflicts, breaches or defaults or
liens, charges or encumbrances that in the aggregate would not have a
material adverse effect on the condition (financial or otherwise), results
of operations, business affairs or business prospects of the Company and
the Subsidiaries, considered as one enterprise.
(n) No authorization, approval, consent or license of, or any
material filing with, any government, governmental instrumentality or
court, domestic or foreign (other than under the 1933 Act, the 1933 Act
Regulations, the 1939 Act and the securities or Blue Sky laws of the
various states), is legally required for the valid authorization,
issuance, sale and delivery of the Underwritten Securities or for the
execution, delivery or performance of the Indenture by the Company.
(o) Except as disclosed or incorporated by reference in the
Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign,
now pending or, to the knowledge of the Company, threatened against the
Company or any Subsidiary that is required to be disclosed in the
Prospectus or that could result in any material adverse change in the
condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, or that could reasonably be expected to
adversely affect the consummation of the transactions contemplated by this
Agreement.
(p) There are no contracts or documents of a character required
pursuant to the 1933 Act to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(q) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all liens, charges, encumbrances or restrictions,
except such as (i) are described in the Prospectus or (ii) are neither
material in amount nor materially significant in relation to the business
of the Company and the Subsidiaries, considered as one enterprise; all of
the leases and subleases material to the business of the Company and the
Subsidiaries, considered as one enterprise, and under which the Company or
any Subsidiary holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any Subsidiary has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(r) The Company and the Subsidiaries each owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations, and has made all
filings with all governmental authorities, necessary
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to own or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither the Company nor
any Subsidiary has received any notice of proceedings relating to
revocation or modification of any such licenses, permits, certificates,
consents, orders, approvals or authorizations, which, singly or in the
aggregate, if not so owned, possessed or obtained or the subject of an
unfavorable ruling, decision or finding, could materially adversely affect
the condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise.
(s) The Company and the Subsidiaries each owns or possesses, or can
acquire on reasonable terms, adequate patents, patent licenses,
trademarks, service marks and trade names necessary to carry on its
business as presently conducted, and neither the Company nor any
Subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent licenses,
trademarks, service marks or trade names that in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could reasonably be
expected to materially adversely affect the condition (financial or
otherwise), results of operations, business affairs or business prospects
of the Company and the Subsidiaries, considered as one enterprise.
(t) Except as disclosed in the Prospectus, to the best knowledge of
the Company, no labor problem exists with its employees or with employees
of the Subsidiaries or is imminent that could reasonably be expected to
materially adversely affect the Company and the Subsidiaries, considered
as one enterprise and, to the knowledge of the Company, except as
disclosed in the Prospectus, the Company is not aware of any material
existing or imminent labor dispute by the employees of any of its or the
Subsidiaries' principal customers that could be expected to materially
adversely affect the Company and the Subsidiaries, considered as one
enterprise.
(u) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Underwritten Securities.
(v) Except as disclosed in or incorporated by reference in the
Prospectus and except as would not individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise), results
of operations, business affairs or business prospects of the Company and
the Subsidiaries, considered as one enterprise, (i) the Company and the
Subsidiaries are each in compliance with all applicable Environmental
Laws, (ii) the Company and the Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (iii) there are
no pending or threatened Environmental Claims against the Company or any
Subsidiary, and (iv) there are no circumstances with respect to any
property or operations of the Company or the Subsidiaries that could
reasonably be anticipated to form the basis of an Environmental Claim
against the Company or the Subsidiaries.
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For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute,
law, rule, regulation, ordinance, code, policy or rule of common law and
any judicial or administrative interpretation thereof including any
judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority. "Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law.
(w) All United States federal income tax returns of the Company (and
any of the Subsidiaries, if not included in the Company's U.S.
consolidated federal income tax return) required by law to be filed have
been properly prepared and filed, and all taxes shown on such returns or
otherwise assessed which are due and payable have been paid. All of the
Company's United States federal tax returns (and any of the Subsidiaries'
tax returns if applicable) for taxable periods through and including the
1992 federal taxable year have been audited by the Internal Revenue
Service or the statute of limitations for such taxable years has run and
thus, all taxes for such periods have been finally determined (excluding
the effect of any net operating loss or credit carryovers to such
periods). All other tax returns of the Company and the Subsidiaries
required to be filed pursuant to applicable foreign, state, local or other
law have been filed, except insofar as the failure to file such returns
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and the Subsidiaries, considered as one enterprise. The Company
and the Subsidiaries have paid (or there has been paid on their behalf)
all taxes which are due and for which no tax return is required. There are
no liens on any of the Company's or the Subsidiaries' assets for taxes,
other than for taxes which have accrued but which are not yet due and
payable. Neither the Company nor any Subsidiary is liable for any taxes
that are imposed on any other person or corporation (other than for taxes
imposed on the Company or the Subsidiaries), except as set forth in
Treasury Regulation 1.1502-6 with respect to prior consolidated groups of
which the Company or its subsidiaries were members.
(x) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) maintained or contributed to by the Company or
any Subsidiary, or with respect to which the Company or any Subsidiary
could incur any liability under ERISA (collectively, the "Benefit Plans"),
no event has occurred and, to the best knowledge of the Company, there
exists no condition or set of circumstances, in connection with which the
Company or any Subsidiary could be subject to any liability under the
terms of such Benefit Plans, applicable law (including, without
limitation, ERISA and the Internal Revenue Code of 1986, as amended (the
"Code")) or any applicable agreement (including, without limitation, the
agreement dated as of January 14, 1993 (the "PBGC Agreement"), among the
Pension Benefit Guaranty Corporation (the "PBGC"), the Company and
▇▇▇▇-▇▇▇▇▇▇
8
Security Corporation ("BWSC")), that could materially adversely affect the
condition (financial or otherwise), results of operations, business affairs
or business prospects of the Company and the Subsidiaries, considered as
one enterprise. The Company is in compliance in all respects with its
obligations under the PBGC Agreement.
Any certificate signed by any officer of the Company or any Subsidiary and
delivered to the Representatives or counsel for the Underwriters in connection
with an offering of Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as to
the matters covered thereby.
SECTION 2. Purchase and Sale. The obligations of the Underwriters to
purchase, and the Company to sell, the Underwritten Securities shall be
evidenced by the Terms Agreement. The Terms Agreement specifies the principal
amount of the Senior Securities or Subordinated Securities, or both, the names
of the Underwriters participating in the offering (subject to substitution as
provided in Section 10 hereof) and the principal amount of Underwritten
Securities which each Underwriter severally has agreed to purchase, the purchase
price to be paid by the Underwriters for the Underwritten Securities, the
initial public offering price, if any, of the Underwritten Securities, any
delayed delivery arrangements and any terms of the Underwritten Securities not
already specified in the Indenture pursuant to which they are being issued
(including, but not limited to, designations, denominations, current ratings,
interest rates or formulas and payment dates, maturity dates, redemption
provisions and sinking fund requirements).
The several commitments of the Underwriters to purchase Underwritten
Securities pursuant to the Terms Agreement 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, the Underwritten
Securities to be purchased by the Underwriters shall be made at the offices of
Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Company, at
10:00 A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the Terms
Agreement or such other time as shall be agreed upon by the Representatives and
the Company (each such time and date being referred to as a "Closing Time").
Unless otherwise specified in the Terms Agreement, payment shall be made to the
Company by wire transfer in immediately available funds against delivery to the
Representatives for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. The Underwritten Securities
shall be in such denominations ($1,000 or an integral multiple thereof) and
registered in such names as the Representatives may request in writing at least
two business days before the applicable Closing Time. The Underwritten
Securities, which may be in temporary form, will be made available in New York
City for examination and packaging by the Representatives on or before the first
business day prior to Closing Time.
9
If authorized by the Terms Agreement, the Underwriters named therein may
solicit offers to purchase Underwritten Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Annex C hereto with such changes therein as the Company may approve. As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
the Representatives at Closing Time, for the accounts of the Underwriters, a fee
equal to that percentage of the principal amount of Senior Securities for which
Delayed Delivery Contracts are made at Closing Time as is specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional investors
of the types set forth in the Prospectus. At Closing Time the Company will enter
into Delayed Delivery Contracts (for not less than the minimum principal amount
of Senior Securities per Delayed Delivery Contract specified in the applicable
Terms Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Senior Securities in excess of that specified in the Terms Agreement.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
The Representatives shall submit to the Company, at least three business
days prior to Closing Time, the names of any institutional investors with which
it is proposed that the Company will enter into Delayed Delivery Contracts and
the principal amount of Senior Securities to be purchased by each of them, and
the Company will advise the Representatives, at least two business days prior to
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the principal amount of Senior
Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Senior Securities agreed to be purchased by the
respective Underwriters pursuant to the Terms Agreement shall be reduced by the
principal amount of Senior Securities covered by Delayed Delivery Contracts, as
to each Underwriter as set forth in a written notice delivered by the
Representatives to the Company; provided, however, that the total principal
amount of Senior Securities to be purchased by all Underwriters shall be in the
total amount of Senior Securities covered by the applicable Terms Agreement,
less the principal amount of Senior Securities covered by Delayed Delivery
Contracts.
SECTION 3. Covenants of the Company. The Company covenants with the
Representatives, and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Senior Securities covered thereby and their terms not otherwise
specified in the Senior Indenture, pursuant to which the Senior Securities
are being issued, the names of the Underwriters participating in the
offering and the principal amount of Senior Securities which each
severally has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the
Underwritten 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
10
arrangements, and such other information as the Representatives and the
Company deem appropriate in connection with the offering of the
Underwritten Securities. The Company will promptly transmit copies of the
Prospectus to the Commission for filing pursuant to Rule 424 of the 1933
Act Regulations and will furnish to the Underwriters named therein as many
copies of any preliminary prospectus supplement and such Prospectus as the
Representatives shall reasonably request.
(b) At any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Underwritten Securities, the
Company will notify the Representatives immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or
any supplement to the Prospectus, (iv) any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order presenting or suspending the use of
any preliminary prospectus supplement, or of the qualification of the
Underwritten Securities for offering or sale in any jurisdiction, or of
the institution or threatening of any proceeding for any such purposes.
The Company will use every reasonable effort to prevent the issuance of
any such stop order or of any order preventing or suspending such use and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(c) The Company has furnished or will furnish to the Representatives
and counsel for the Representatives, without charge, as many copies
(including at least one signed copy) of the Registration Statement (as
originally filed) and of all amendments thereto, whether filed before or
after the Registration Statement becomes effective, copies of all exhibits
and documents filed therewith (including documents incorporated by
reference into the Prospectus pursuant to Item 12 and Rule 412) and signed
copies of all consents and certificates of experts, as you may reasonably
request and has furnished or will furnish to you, for each other
Underwriter, one conformed copy of the Registration Statement as
originally filed and of each amendment thereto (including documents
incorporated by reference into the Prospectus but without exhibits).
(d) The Company will comply in all material respects with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations so as to permit
the completion of the distribution of the Underwritten Securities as
contemplated in this Agreement and in the Prospectus. If, at any time when
a prospectus is required by the 1933 Act or the 1933 Regulations to be
delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or counsel for the Company,
to amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus will not include an untrue
11
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly upon becoming aware of such event or
condition 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 and Prospectus comply with such
requirements.
(e) The Company will use its best efforts in cooperation with the
Underwriters to qualify the Underwritten Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions as the Representatives may designate; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will use
its best efforts in cooperation with the Underwriters to maintain such
qualifications in effect for as long as may be required for the
distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction
in which the Underwritten Securities have been qualified as above
provided. The Company will also supply the Representatives with such
information as is necessary for the determination of the legality of the
Underwritten Securities for investment under the laws of such
jurisdictions as the Representatives may request.
(f) With respect to each sale of Underwritten Securities, the
Company will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, earning statements of the Company (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a period
of 12 months beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined
in Rule 158) of the Registration Statement relating to Underwritten
Securities.
(g) The Company will use the net proceeds received by it from the
sale of the Underwritten Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(h) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act in connection with the sale of the
Underwritten Securities, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
12
(i) Between the date of the Terms Agreement or the Closing Time with
respect to the Underwritten Securities covered thereby, the Company will
not, without the Representatives' prior consent, offer or sell, or enter
into any agreement to sell, any debt securities issued or guaranteed by
the Company with a maturity of more than one year in any public offering
(other than the Underwritten Securities), including additional Senior
Securities. This limitation is not applicable to the public offering of
tax-exempt securities guaranteed by the Company.
(j) At any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Underwritten Securities, the
Company will give the Representatives notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise, will furnish the Representatives with copies of any such
amendment or supplement or other documents proposed to be filed a
reasonable time in advance of filing, and will not file any such amendment
or supplement or other documents in a form to which the Representatives or
counsel for the Underwriters shall reasonably object in writing.
(k) If the Company elects to rely upon Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission
in compliance with Rule 462(b) and pay the applicable fees in accordance
with Rule 111 of the 1933 Act Regulations by the earlier of (i) 10:00 P.M.
Eastern time on the date of the Terms Agreement and (ii) the time
confirmations are sent or given, as specified by Rule 462(b).
SECTION 4. Payment of Expenses. The Company will pay and bear all costs
and expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including, financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (ii) the preparation, printing and distribution of
this Agreement, the Terms Agreement, the Indenture and the Underwritten
Securities and the Blue Sky Survey (which shall not be typeset), (iii) the
delivery of the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Underwritten Securities under applicable securities laws in accordance with
Section 3(e) and any filing for review of the offering with the National
Association of Securities Dealers, Inc., including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters solely in
connection therewith and in connection with the preparation of any Blue Sky
Survey and Legal Investment Survey, (vi) the listing fees and expenses incurred
in connection with listing the Underwritten Securities on the New York Stock
Exchange, (vii) any fees charged by rating agencies for rating the Underwritten
Securities and (viii) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee, in connection with the Indenture
and the Underwritten Securities.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or Section 9(a)(i), the Company shall reimburse the
Underwriters named in the
13
Terms Agreement for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of Shearman & Sterling as counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. In addition to the
execution and delivery of the Terms Agreement, the obligations of the several
Underwriters to purchase and pay for the Underwriters Securities that they have
respectively agreed to purchase hereunder are subject to the accuracy of the
representations and warranties of the Company as of each Representation Date
contained herein or in certificates of any officer of the Company or any
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following further
conditions:
(a) At the applicable Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been
instituted or shall be pending or, to the knowledge of the Company, shall
be contemplated by the Commission.
(b) At the applicable Closing Time, the Representatives shall have
received:
(1) A signed opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇,
special counsel for the Company, dated as of the Closing Time,
together with signed or reproduced copies of such opinion for each
of the other Underwriters, in form and substance reasonably
satisfactory to counsel for the Underwriters, in the form set forth
in Exhibit A hereto.
(2) A signed opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Vice
President, Secretary and General Counsel for the Company, dated as
of the Closing Time, together with signed or reproduced copies of
such opinion for each of the other Underwriters, in form and
substance reasonably satisfactory to counsel for the Underwriters,
in the form set forth in Exhibit B hereto.
(3) A signed opinion of NSK-Warner's Japanese counsel, dated
as of the Closing Time, together with signed or reproduced copies of
such opinion for each of the other Underwriters, in form and
substance reasonably satisfactory to counsel for the Underwriters,
in the form set forth in Exhibit C hereto.
(4) The favorable opinion of Shearman & Sterling, counsel for
the Underwriters, dated as of the Closing Time, together with signed
or reproduced copies of such opinion for each of the other
Underwriters, to the effect that the opinions delivered pursuant to
Section 5(b)(1), 5(b)(2) and 5(b)(3) hereof appear on their face to
be appropriately responsive to the requirements of this Agreement
except, specifying the same, to the extent waived by you, and with
respect to the incorporation and legal existence of the Company,
this Agreement, the Indenture, the Registration Statement, the
Prospectus and such other related matters as you may require. In
giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the
General Corporation Law of the State
14
of Delaware, upon the opinions of counsel satisfactory to you. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Subsidiaries and
certificates of public officials.
(c) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall comply in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the 1939 Act Regulations, and neither
the Registration Statement nor the Prospectus, as they may then be amended
or supplemented, shall contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) there shall not have
been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition
(financial or otherwise), results of operations, business affairs or
business prospects of the Company and the Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business,
(iii) no action, suit or proceeding at law or in equity shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Subsidiary that would be required to be set forth in the Prospectus other
than as set forth therein and no proceedings shall be pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary
before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
could materially adversely affect the condition (financial or otherwise),
results of operations, business affairs or business prospects of the
Company and the Subsidiaries, considered as one enterprise, other than as
set forth in the Prospectus, (iv) the Company shall have complied with all
agreements and satisfied all conditions set forth in this Agreement on its
part to be performed or satisfied at or prior to the Closing Time and (v)
the other representations and warranties of the Company set forth in
Section 1 shall be accurate as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate
of the President or a Vice President, and the Treasurer or an Assistant
Treasurer, of the Company, dated as of the Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company, you
shall have received from Deloitte & Touche LLP a letter, dated such date,
in form and substance satisfactory to you, together with signed or
reproduced copies of such letter for each of the other Underwriters,
confirming that they are independent public accountants with respect to
the Company within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations, and stating in effect that:
(i) in their opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations;
15
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of
a reading of the unaudited interim consolidated financial statements
of the Company included or incorporated by reference in the
Registration Statement and the Prospectus (collectively, the "10-Q
Financials"), a reading of the latest available unaudited interim
consolidated financial statements of the Company, a reading of the
minutes of all meetings of the stockholders and directors of the
Company and the Subsidiaries and each Committee of the Company's
Board of Directors and of each Committee of the Board of Directors
of any Subsidiary since July 1, 1999, inquiries of certain officials
of the Company and the Subsidiaries responsible for financial and
accounting matters, and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) the 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to
unaudited financial statements included in Form 10-Q or any
material modifications should be made to the 10-Q Financials
included or incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) at August 31, 1999 and at a specified date not more
than three days prior to the date of this Agreement, there was
any change in the capital stock of the Company and the
Subsidiaries or any decrease in the consolidated net current
assets or stockholders' equity of the Company and the
Subsidiaries or any increase in long-term debt of the Company
and the Subsidiaries, in each case as compared with amounts
shown in the latest consolidated balance sheet included or
incorporated by reference in the Registration Statement,
except in each case for changes, decreases or increases that
the Registration Statement discloses have occurred or may
occur; or
(C) for the period from July 1, 1999 to August 31, 1999
and for the period from July 1, 1999 to a specified date not
more than three days prior to the date of this Agreement,
there was any decrease in net sales, equity in affiliate
earnings and other income, earnings before interest and
finance charges and income taxes or net earnings, in each case
as compared with the comparable period in the preceding year;
(iii) based upon the procedures set forth in clause (ii) above
and a reading of the Selected Historical Financial Data included in
the Registration Statement and a reading of the financial statements
from which certain of such data were derived, nothing has come to
their attention that gives them reason to
16
believe that the Selected Historical Financial Data included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations, that the information set forth therein
is not fairly stated in relation to the financial statements from
which it was derived or that the financial statements not included
in the Registration Statement from which certain of such data were
derived are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of
the audited financial statements included in the Registration
Statement; and
(iv) they are unable to and do not express any opinion on the
Pro Forma Financial Data (the "Pro Forma Statement") included or
incorporated by reference in the Registration Statement or on the
pro forma adjustments applied to the historical amounts included in
the Pro Forma Statement; however, for purposes of such letter they
have:
(A) read the Pro Forma Statement;
(B) made inquiries of certain officials of the Company
who have responsibility for financial and accounting matters
about the basis for their determination of the pro forma
adjustments and whether the Pro Forma Statement complies as to
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(C) proved the arithmetic accuracy of the application of
the pro forma adjustments to the historical amounts in the Pro
Forma Statement; and
on the basis of such procedures, and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that caused them to
believe that the Pro Forma Statement included or incorporated by reference in
the Registration Statement does not comply as to form in all material respects
with the applicable requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the historical amounts in
the compilation of those statements;
(v) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the
Registration Statement, which have previously been specified by you
and which shall be specified in such letter, and have compared
certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company.
(e) At the time that this Agreement is executed by the Company, you
shall have received from KPMG Peat Marwick a letter, dated such date, in
form and substance satisfactory to you, together with signed or reproduced
copies of such letter for each of
17
the other Underwriters, confirming that they are independent public
accountants with respect to the NSK-Warner within the meaning of the 1933
Act and applicable published 1933 Act Regulations, and stating in effect
that:
(i) in their opinion, the audited financial statements and the
related financial statement schedules for NSK-Warner included or
incorporated by reference in the Registration Statement and the
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations;
(ii) they have read the latest available unaudited interim
consolidated financial statements of NSK-Warner, the minutes of all
meetings of the stockholders and directors of NSK-Warner and each
Committee of the Board of Directors set forth in the minute books at
September 22, 1999, inquired of certain officials of NSK-Warner
responsible for financial and accounting matters, and made such
other inquiries and performed such other procedures as may be
specified in such letter, and officials of NSK-Warner stated that:
(A) at August 31, 1999 and at a specified date not more
than three days prior to the date of this Agreement, there was
no change in the common stock of NSK-Warner or decrease in the
net current assets or stockholders' equity of NSK-Warner or
increase in the notes payable or long-term debt of NSK-Warner,
in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Registration Statement; or
(B) for the period from July 1, 1999 to August 31, 1999
and from July 1, 1999 to a specified date not more than three
days prior to the date of this Agreement, there was no
decrease in sales, earnings before income taxes or net
earnings, in each case as compared with the corresponding
period in the preceding year.
(f) At the time this Agreement is executed by the Company, you shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a letter dated such date in form and
substance satisfactory to you, together with signed or reproduced copies
of such letter for each of the other Underwriters, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements of
▇▇▇▇▇▇▇ Corporation incorporated by reference into the Registration
Statement.
(g) At the Closing Time, you shall have received from each of
Deloitte & Touche LLP and KPMG Peat Marwick a letter, in form and
substance satisfactory to you and dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letters furnished
pursuant to Sections 5(f) and 5(g), respectively, except that the
specified date referred to shall be a date not more than three days prior
to the Closing Time.
18
(h) Subsequent to the execution and delivery of any Terms Agreement
and prior to the Closing Time, there shall not have been any downgrading,
nor any notice given of any intended or potential downgrading or of a
possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Company's securities, including
the Underwritten Securities, by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the 1933 Act.
(i) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with all such documents, certificates and
opinions as they may reasonably request for the purpose of enabling them
to pass upon the issuance and sale of the Underwritten Securities as
herein contemplated 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 Underwritten Securities as
herein contemplated shall be reasonably satisfactory in form and substance
to the Representatives and counsel for the Underwriters.
If any of the conditions specified in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by the Representatives by notice to the Company at any time at
or prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 6, 7
and 8 shall remain in effect.
SECTION 6. Indemnification of Underwriters. (a) (1) 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 or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), and all documents incorporated
therein by reference, 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 an untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) 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;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, 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
19
with the written consent of the Company, except as otherwise provided by
Section 6(d); and
(iii) against any and all expense whatsoever, as incurred (including
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;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto).
(2) Insofar as this indemnity agreement may permit indemnification
for iabilities 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 of Section 20 of the 1934 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 under Item 17 thereof.
(b) Indemnification of Company, Directors and its Officers. Each
Underwriter severally 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 or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus supplement
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of the such Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
supplement or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives and
in the case of parties indemnified pursuant to Sections 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the
20
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, which consent shall not be
unreasonably withheld, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request for fees and expenses of
counsel prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the
Underwritten Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting
21
expenses) received by the Company and the total underwriting discount received
by the Underwriters, in each case as set forth on the cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact related to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 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 or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Underwritten Securities set forth opposite
their respective names in the Terms Agreement and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
The representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement will
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Company, any Underwriter or any person who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or
22
Section 20 of the 1934 Act, and will survive delivery of and payment for the
Underwritten Shares.
SECTION 9. Termination. (a) The Representatives may terminate this
Agreement, by notice to the Company, at any time prior to the applicable Closing
Time (i) if there has been, since the date of the Terms Agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, or any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective adverse change in national or international political,
financial or economic conditions, in each case the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any securities of the Company has been suspended by the Commission or
the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or on the Nasdaq has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
by such system or by order of the Commission, the New York Stock Exchange, the
NASD or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal, New York or Illinois authorities. For purposes
of this Section 9(a), the deployment of a Level 1 trading halt by the New York
Stock Exchange in and of itself shall not constitute a material limitation on
trading on such exchange.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 1, 6, 7 and 8 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating in
an offering of Senior Securities shall fail at the applicable Closing Time to
purchase the Underwritten Securities that it or they are obligated to purchase
under the applicable Terms Agreement (the "Defaulted Securities"), then the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters satisfactory to the Company, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms set forth in this Agreement and the applicable Terms Agreement. If,
however, during such 24 hours the Representatives shall not have completed such
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 Underwritten
Securities to be purchased pursuant to the Terms Agreement, the
non-defaulting Underwriters named in such Terms
23
Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations thereunder bear
to the underwriting obligations of all such non-defaulting Underwriters,
or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Underwritten
Securities to be purchased pursuant to such Terms Agreement, the Terms
Agreement shall terminate without any liability on the part of any
non-defaulting Underwriters.
As used in this Section only, the aggregate amount or aggregate principal
amount of Underwritten Securities shall mean the aggregate principal amount of
any Senior Securities or Subordinated Securities included in the relevant
Underwritten Securities.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the right
to postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to the Representatives at ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., World Financial Center - North Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, notices to the Company shall
be directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company and any Underwriter who becomes a party hereto, 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 or thereto 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 Underwritten Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law and Time. This Agreement shall be governed
by the laws of the State of New York. Specified times of the day refer to
New York City time.
24
SECTION 14. Counterparts. The Terms Agreement may be executed in one or
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
25
ANNEX A
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
(A DELAWARE CORPORATION)
$ ____________
__ % SENIOR NOTES DUE 20__
TERMS AGREEMENT
Dated: ________ ___, ____
▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We (the "Representatives") understand that ▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc., a
Delaware corporation (the "Company"), proposes to issue and sell $________
aggregate principal amount of its [__% Senior Notes] due 20__ (the "Notes")
(collectively, the "Underwritten Securities"). Subject to the terms and
conditions set forth herein or incorporated by reference herein, the Company has
agreed to sell to the underwriters named below (the "Underwriters"), and the
Underwriters have agreed, severally and not jointly, to purchase from the
Company, the respective amounts of Notes set forth below opposite their
respective names at the purchase prices set forth below.
------------------------------------------------------- -------------------
UNDERWRITER PRINCIPAL AMOUNT
OF NOTES
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Banc of America Securities LLC
Banc One Capital Markets, Inc.
Chase Securities Inc.
Total................$____________
The Underwritten Securities shall have the following terms:
Title of Debt
Securities: __% Senior Notes due 20__
Currency: U.S. dollars
Principal amount
to be issued: $ 150,000,000 Notes due 20__
Current ratings: ▇▇▇▇▇'▇ Investors Service, Inc. -- ; Standard &
Poor's Corporation --.
Interest rate: __%
Spread:
Interest Payment Dates: ________ __ and __________ __, beginning _________ __
Regular Record Dates: ___________ __ and ____________ __
Stated Maturity Date: __________ __, _____
Optional Redemption: Redemption at option of Company, in whole at any
time, or in part from time to time, at a redemption
price equal to the greater of : (1) 100% of the
principal amount of the Notes and (2) the sum of the
present values of the remaining scheduled payments of
principal and interest discounted to the date of
redemption on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the
applicable Treasury Rate plus __ basis points plus,
in either case, accrued and unpaid interest on the
principal amount being redeemed to the redemption date.
Sinking fund
requirements: None
Delayed Delivery
Contracts: authorized
Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %
Initial public offering
price: __%, plus accrued interest, if any, or
amortized original issue discount, if any, from
____________ __, ________.
Purchase price: __%, plus accrued interest, if any, or
amortized original issue discount, if any, from
__________ __, ____ (payable in immediately available
funds).
Form: Book-entry represented by global securities
deposited with The Depository Trust Company.
Ranking: [Senior, unsecured obligations of the Company].
Closing Date and
Location: ________ ___, _____, at the offices of Shearman &
Sterling, New York, New York.
All the provisions contained in the agreement attached as Annex A hereto
entitled "▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc.--Debt Securities--Underwriting Agreement
Basic Provisions" are hereby incorporated by reference in their entirety herein
and shall be deemed to be a part of this Terms Agreement to the same extent as
if such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
If the foregoing is in accordance with your understanding of our
agreement, please sign a copy of this Terms Agreement in the space set forth
below and return the signed copy to us.
Very truly yours,
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
-----------------------------------------
Name:
Title:
For themselves and as Representatives of the
other Underwriters named herein.
Accepted:
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
By
---------------------------------
Name:
Title:
ANNEX B
SUBSIDIARIES
Name of Subsidiary Percent of Capital
Stock Beneficially
Owned by ▇▇▇▇-▇▇▇▇▇▇
Automotive, Inc
or the Subsidiaries
____________________
▇▇▇▇-▇▇▇▇▇▇ Automotive Automatic Transmission 100
Systems Corporation
▇▇▇▇-▇▇▇▇▇▇ Automotive -- NW Corporation 100
NSK-▇▇▇▇▇▇ ▇.▇. 50
▇▇▇▇-▇▇▇▇▇▇ Automotive Korea, Inc. 60*
▇▇▇▇-▇▇▇▇▇▇ Automotive -- Europe Corporation 100
▇▇ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇ 63
▇▇▇▇-▇▇▇▇▇▇ Automotive Europe GmbH 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Cooling 100
Systems GmhH
3K Warner Turbo-Systems GmbH 100
Borg Warner Automotive GmbH 100
BWA-Europa V & V GmbH 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Air/Fluid Systems Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Fuel Systems Corporation 100
▇▇▇▇▇▇ Tank Foreign Sales Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Air/Fluid Systems 100
Corporation of Michigan
▇▇▇▇-▇▇▇▇▇▇ Automotive Air/Fluid Systems 100
Holding Corporation
BWA Receivables Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Air/Fluid Systems 100
Europe S.A.S.
▇▇▇▇-▇▇▇▇▇▇ Automotive Air/Fluid 100
Systems, Tulle ▇.▇.
▇▇▇▇-▇▇▇▇▇▇ Automotive Cooling Systems Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive ▇▇▇▇▇ TEC Corporation 100
B.W. Componentes Mexicanos de 100
______________
* Remaining 40% owned by NSK-▇▇▇▇▇▇ ▇.▇.
Transmisiones S.A. de ▇.▇.
▇▇▇▇▇ TEC Europe Sp.A 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Taiwan Co. Ltd. 100
-------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇▇▇ Automotive -- Japan Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive K.K. 100
▇▇▇▇-▇▇▇▇▇▇ Automotive (Canada) Ltd. 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Powertrain Systems 100
Corporation
▇▇▇▇-▇▇▇▇▇▇ Automotive Diversified Transmission 100
Products Corporation
Beijing-Warner Gear Co., Ltd. 49.9
▇▇▇▇-▇▇▇▇▇▇ Automotive Powdered Metals 100
Corporation
▇▇▇▇-▇▇▇▇▇▇ Automotive PTS Korea Service Inc. 100
▇▇▇▇-▇▇▇▇▇▇ Automotive South Asia Corporation 100
▇▇▇▇▇-▇▇▇▇▇▇ Limited 60
Huazhong [Automotive] Transmission Company, Ltd. 60
▇▇▇▇-▇▇▇▇▇▇ Automotive Foreign Sales Corporation 100
Creon Insurance Agency, Limited 100
Creon Trustees Limited 100
▇▇▇▇▇▇▇ Corporation 100
BWA Turbo Systems Holding Corporation 100
BWA Turbo Systems Holdings Limited 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Turbo Systems Limited 100
▇▇▇▇▇▇▇▇▇ Pension Trustee Limited 50
▇▇▇▇▇ Industries, S.A. 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Turbo Systems Corporation 100
▇▇▇▇▇▇▇▇▇ Manufacturing Canada, Inc. 100
▇▇▇▇▇ Asia Limited 100
▇▇▇▇▇ DO BRASIL LTDA 100
Lacom ▇▇▇▇▇▇▇▇▇ Equipamentos, Ltda. 100
Spring Products Corporation 100
▇▇▇▇▇▇▇ Electric Corporation 100
▇▇▇▇▇▇▇ Industrial Products, Inc. ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, Ltd. 100
▇▇▇▇▇▇▇ Specialties, Inc. 100
Borse Plastic Products Corp. 100
2
Associated Engineering Company 100
▇▇▇▇▇▇▇ Cable Systems, Inc. 100
The DeKalb Works Company ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ S.A. de C.V. 100
Baron Wire & Cable Corp. 100
3
ANNEX C
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
(A DELAWARE CORPORATION)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
________ ___, ____
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from ▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc.
(the "Company"), and the Company agrees to sell to the undersigned on ________
___,____ ("Delivery Date"), ____________________ principal amount of the
Company's [insert title of security] (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 or its order by certified or official
bank check in New York Clearing House funds at the office of _________, on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than three 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
Terms Agreement dated ________ ___, ____ between the Company and the
Underwriters. 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 payments 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 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 its 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)
2
Accepted as of the date first above written.
▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc.
By _________________________________
(Title)
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the Representatives of the Purchaser with whom
details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
NAME TELEPHONE NO.
____ (INCLUDING
AREA CODE)
_____________
3