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EXHIBIT 1.1
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
FORM OF UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
, 2000
From time to time, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a Michigan corporation (the
"COMPANY"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (No. 333- ), including a prospectus,
relating to the Debt Securities and has filed with, or transmitted for filing
to, or shall promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement (the "PROSPECTUS SUPPLEMENT") specifically
relating to the Offered Securities pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "SECURITIES ACT"). The term "REGISTRATION STATEMENT"
means the registration statement, including the exhibits thereto, as amended to
the date of this Agreement. The term "BASIC PROSPECTUS" means the prospectus
included in the Registration Statement. The term "PROSPECTUS" means the Basic
Prospectus together with the Prospectus Supplement. The term "PRELIMINARY
PROSPECTUS" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "SUPPLEMENT," "AMENDMENT" and "AMEND" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
The term "CONTRACT SECURITIES" means the Offered Securities to be
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purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"DELAYED DELIVERY CONTRACTS"). The term "UNDERWRITERS' SECURITIES" means the
Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such
part became effective, did not contain, and each such part, as amended
or supplemented, if applicable, will not contain any 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, (iii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do
not apply to (A) statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein or (B) that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property
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requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or through one or more subsidiaries by the Company, free and
clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the 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).
(g) The Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the 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).
(h) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the
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Underwriters' Securities, or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts, in the case of the
Contract Securities, will have been duly executed, authenticated,
issued and delivered and will conform to the description thereof
contained in the Prospectus, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their respective terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the 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).
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not contravene any provision of (i) applicable law, (ii)
the articles of incorporation or by-laws of the Company, (iii) any
agreement or other instrument binding upon the Company or any of its
subsidiaries, or to which any of their respective properties, assets or
operations is subject or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any of its subsidiaries, except, in the case of clause (iii), as
would not, in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the
Offered Securities or the Delayed Delivery Contracts, except such as
may be required by the securities or Blue Sky laws of the various
states and the securities laws of jurisdictions outside the United
States in connection with the offer and sale of the Offered Securities.
The Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) Except as disclosed by the Company in the Prospectus on or
prior to the date of this Agreement or any Underwriting Agreement,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company after due inquiry, threatened to which the
Company or any of
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its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or
incorporated as required, or, in any case, would materially and
adversely affect the ability of the Company to perform its obligations
under the Indenture, this Agreement or any Delayed Delivery Contract,
or which are otherwise material in the context of the sale of the
Offered Securities.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(m) The financial statements included in the Registration
Statement and Prospectus present fairly the consolidated financial
position of the Company and its subsidiaries as of the dates shown and
their results of operations and cash flows for the periods specified,
and such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; any financial data schedules included in the
Registration Statement present fairly the information required to be
stated therein; and the assumptions used in preparing any pro forma
financial information included in the Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(n) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(o) The Company and its subsidiaries and all of their
respective assets and operations (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or
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toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(q) The Company has good and marketable title to all material
real properties and all other material properties and assets owned by
it, in each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by it; and except as disclosed in the
Prospectus, the Company holds any leased material real or personal
property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made thereof by
it.
(r) The Company possesses adequate certificates, authorities
or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it, except for such
certificates, authorities and permits the lack of possession of which
would not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and has not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company, would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(s) No labor disturbance by the employees of the Company
exists or, to the knowledge of the Company, is threatened that could
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
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(t) The Company owns, possesses or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by it, or currently
employed by it (except for such intellectual property rights currently
employed by the Company the lack of ownership, possession or
acquisition on reasonable terms of which would not have material
adverse effect on the Company and its subsidiaries, taken as a whole),
and has not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company, would, singly or
in the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(u) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus provides for sales
of Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth in the applicable Underwriting Agreements, less the
aggregate amount of Contract Securities.
3. Terms of Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
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portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this Section
4, payment for the Underwriters' Securities shall be made by wire transfer to
the Company in Federal or other funds immediately available at the time and
place set forth in the Underwriting Agreement, upon delivery to the Manager for
the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery, with any transfer taxes payable in connection with the transfer of
the Underwriters' Securities to the Underwriters duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are
Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "GLOBAL DEBT SECURITY")
evidencing the Offered Securities that are Debt Securities in bearer form to a
common depositary for ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euro-clear System ("EURO-CLEAR"), and for Clearstream
Banking, societe anonyme ("CLEARSTREAM") for credit to the respective accounts
at Euro-clear or Clearstream of each Underwriter or to such other accounts as
such Underwriter may direct. Any Global Debt Security shall be delivered to the
Manager not later than the Closing Date, against payment of funds to the Company
in the net amount due to the Company for such Global Debt Security by the method
and in the form set forth in the Underwriting Agreement. The Company shall cause
definitive Debt Securities in bearer form to be prepared and delivered in
exchange for such Global Debt Security in such manner and at such time as may be
provided in or pursuant to the Indenture; provided, however, that the Global
Debt Security shall be exchangeable for definitive Debt Securities in bearer
form only on or after the date specified for such purpose in the Prospectus.
5. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters are subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes
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of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement) that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct on the Closing Date as
if made on and as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Varnum, Riddering, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, outside counsel
for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company listed on Schedule
I has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its
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incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction set forth opposite its
name on such schedule;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) the Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the 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);
(v) the Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in
accordance with their respective terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
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);
(vi) the Offered Securities have been duly authorized
and executed by the Company and, when authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the
terms of the Underwriting Agreement, in the case of
Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts,
in the case of the Contract Securities, will be entitled to
the benefits of the Indenture and will be valid and binding
obligations of the Company, in each case enforceable in
accordance with their respective terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
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);
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(vii) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Indenture, the Offered Securities and the
Delayed Delivery Contracts will not contravene any provision
(i) of applicable law, (ii) the articles of incorporation or
by-laws of the Company, (iii) to the best of such counsel's
knowledge, any agreement or other instrument binding upon the
Company or any of its subsidiaries, or to which any of the
properties, assets or operations of the Company or any of its
subsidiaries is bound or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company,
any of its subsidiaries or any of the properties, assets or
operations of the Company or any of its subsidiaries, except,
in the case of clause (iii), as would not, in the aggregate,
have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, the
Indenture, the Offered Securities or the Delayed Delivery
Contracts, except such as may be required by the securities or
Blue Sky laws of the various states and the securities laws of
jurisdictions outside the United States in connection with the
offer and sale of the Offered Securities; and the Company has
corporate full power and authority to authorize, issue and
sell the Offered Securities as contemplated by this Agreement;
(viii) the Registration Statement has become
effective under the Securities Act, the Prospectus was filed
with the Commission pursuant to the subparagraph specified in
such opinion of Rule 424(b) under the Securities Act on the
date specified therein, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act;
(ix) the statements (A) in the Prospectus under the
captions "Description of the Senior Notes," "Description of
Debt Securities" and "Plan of Distribution" and (B) in the
Registration Statement under Item 15, in each case insofar as
such statements constitute summaries of the legal matters,
documents or proceedings referred to therein, are accurate and
fairly present the information called for with respect to such
legal matters, documents
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and proceedings and fairly summarize the matters referred to
therein; and the Offered Securities (other than any Contract
Securities) conform, and any Contract Securities, when issued,
delivered and sold in accordance with the provisions of the
related Delayed Delivery Contract, will conform, to the
description thereof contained in the Prospectus;
(x) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement that are not described,
filed or incorporated as required;
(xi) the Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such term
is defined in the Investment Company Act of 1940, as amended;
and
(xii) such counsel (A) is of the opinion that each
document filed pursuant to the Exchange Act and incorporated
by reference in the Prospectus (except for financial
statements, financial data, statistical data and supporting
schedules included therein as to which such counsel need not
express any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (B) has no
reason to believe that (except for financial statements,
financial data, statistical data and supporting schedules as
to which such counsel need not express any belief and except
for that part of the Registration Statement that constitutes
the Form T-1 heretofore referred to) each part of the
Registration Statement, when such part became effective,
contained and, as of the date such opinion is delivered,
contains any untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(C) is of the opinion that the Registration Statement and
Prospectus (except for financial statements, financial data,
statistical data and supporting schedules included therein as
to which such counsel need not express any opinion and except
for that part of the
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Registration Statement that constitutes the Form T-1
heretofore referred to) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (D) has no reason
to believe that (except for financial statements, financial
data, statistical data and supporting schedules as to which
such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form
T-1 heretofore referred to) the Prospectus as of the date such
opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
For purposes of the foregoing opinion, such counsel may state
that (1) "Applicable Law" shall mean only the laws of the United
States, the State of Michigan and the State of New York which, in such
counsel's experience, are normally applicable to transactions of the
type contemplated by this Agreement, but without such counsel having
made any special investigation as to the applicability of any specific
law, rule or regulation except as specified herein, and (2) any opinion
or statement herein which is expressed to be "to our knowledge" with
respect to the existence or absence of facts or is otherwise qualified
by words of like import means that the lawyers currently practicing law
with such counsel who have represented the Company in connection with
the issuance and sale of securities or who otherwise have had principal
responsibility for representing the Company on other significant
matters have no actual knowledge, after due inquiry, of the existence
or absence of such facts.
(d) The Underwriters shall have received on the Closing Date
an opinion or opinions of Sidley & Austin, special counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in Sections 5(c)(iii), 5(c)(iv), 5(c)(v), 5(c)(vi), 5(c)(viii) and
5(c)(ix) (but only as to the statements in the Prospectus under
"Description of Debt Securities" and "Plan of Distribution") and
clauses 5(c)(xii)(B), 5(c)(xii)(C) and 5(c)(xii)(D) above and the
Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, Sidley & Austin may rely as to all
matters governed by Michigan law upon the opinion of Varnum, Riddering,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP referred to above.
With respect to Section 5(c)(xii) above, Varnum, Riddering,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP may state that (1) their opinion and belief are
based solely upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto and
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documents incorporated therein by reference and review and discussion
of the contents thereof, but are without independent check or
verification, except as specified and (2) they are not assuming any
responsibility for the accuracy, completeness, or fairness of the
statements contained in the Registration Statement or Prospectus except
as specified. With respect to clauses 5(c)(xii)(B), 5(c)(xii)(C) and
5(c)(xii)(D) above, Sidley & Austin may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements
thereto (but not including documents incorporated therein by reference)
and review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check
or verification, except as specified.
The opinion of Varnum, Riddering, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
described in Section 5(c) above shall be rendered to the Underwriters
at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on or prior to the
date of this Agreement and on the Closing Date a letter, dated the date
of this Agreement or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from the Company's
independent public accountants, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Prospectus.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, five signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish the Manager in New
York City, without charge, prior to 10:00 a.m. New York City time on
the business day next succeeding the date of this Agreement and during
the period mentioned in Section 6(c) below, as many copies of the
Prospectus, any documents incorporated by reference therein and any
supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish to the Manager a copy of each such proposed amendment or
supplement and not
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15
to file any such proposed amendment or supplement to which the Manager
reasonably objects; and the Company will also advise the Manager
promptly of the filing of any such amendment or supplement and of the
institution by the Commission of any stop order proceedings in respect
of the Registration Statement or of any part thereof and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Offered Securities may have been sold by the Manager
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law. Neither the Manager's consent to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
5.
(d) To endeavor to qualify the Offered Securities for offer
and sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to continue such
qualifications in effect so long as required for the distribution.
(e) To make generally available to the Company's security
holders and to the Manager as soon as practicable an earning statement
covering a twelve month period beginning on the first day of the first
full fiscal quarter after the date of this Agreement, which earning
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and the rules and regulations of the Commission
thereunder. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
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(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company substantially similar to the Offered
Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the prior
written consent of the Manager.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Offered Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Offered Securities to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost
of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Offered Securities under
state law and all expenses in connection with the qualification of the
Offered Securities for offer and sale under state law as provided in
Section 6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) the fees and disbursements of the Company's counsel
and accountants and of the Trustee and its counsel, (v) all filing fees
and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification
of the offering of the Offered Securities by the National Association
of Securities Dealers, Inc., (vi) any fees charged by the rating
agencies for the rating of the Offered Securities, (vii) all fees and
expenses in connection with the preparation and filing of any
registration statement on Form 8-A relating to the Offered Securities
and all costs and expenses incident to listing the Offered Securities
on any national securities exchange or foreign stock exchange, (viii)
the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Offered Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior
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approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road show
and (ix) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 7 entitled "Indemnity and
Contribution", and the last paragraph of Section 9 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, and any advertising expenses
connected with any offers they may make.
7. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or alleged untrue statement
or omission or alleged omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnification obligation with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages, or liabilities purchased Offered Securities or upon any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto in accordance with Section 6(c)) was not sent or given by or
on behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Offered
Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter,
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but only with reference to information relating to such Underwriter furnished to
the Company in writing by such Underwriter through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either Section 7(a) or 7(b), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to Section 7(a) above, and by the Company, in the case of parties
indemnified pursuant to Section 7(b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could
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have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (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 Offered Securities or (ii) if the allocation
provided by clause 7(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 7(d)(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 that resulted in such losses, claims, damages or liabilities, 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 Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate Public Offering Price of the Offered Securities. 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 the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
7 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just
or 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 that does not take account of the
equitable considerations referred to in Section 7(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such
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action or claim. 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 Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 7 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and adverse
and (b) in the case of any of the events specified in clauses 8(a)(i) through
8(a)(iv), such event, singly or together with any other such event, makes it, in
the judgment of the Manager, impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Underwriters' Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date,
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the other Underwriters shall be obligated severally in the proportions that the
amount of Underwriters' Securities set forth opposite their respective names in
the Underwriting Agreement bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no event
shall the amount of Underwriters' Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 9 by
an amount in excess of one-ninth of such amount of Underwriters' Securities
without the written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Underwriters'
Securities and the aggregate amount of Underwriters' Securities with respect to
which such default occurs is more than one-tenth of the aggregate amount of
Underwriters' Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such
Underwriters' Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either the Manager or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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FORM OF UNDERWRITING AGREEMENT
, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
We (the "MANAGER") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Inc., a Michigan corporation (the "Company"), proposes to issue and sell
$ aggregate initial offering price of [Full title of Debt
Securities] (the "DEBT SECURITIES"). The Debt Securities are sometimes referred
to herein as the "OFFERED SECURITIES." The Debt Securities will be issued
pursuant to the provisions of an Indenture dated as of , 2000 as
supplemented by the First Supplemental Trust Indenture dated as of ,
2000 (the "INDENTURE") between the Company and Bank One Trust Company, National
Association, as Trustee (the "TRUSTEE").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of % of the principal amount of
Debt Securities [, plus accrued interest, if any, from [Date of Offered
Securities] to the date of payment and delivery]:
NAME PRINCIPAL AMOUNT OF DEBT
SECURITIES
--------------------------------------------------- ----------------------------
----------------------------
Total.....................................
[The principal amount of Debt Securities to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to Delayed Delivery Contracts.]
23
The Underwriters will pay for the Offered Securities [(less any Offered
Securities sold pursuant to Delayed Delivery Contracts)] upon delivery thereof
at at a.m. (New York City time) on , 2000, or
at such other time, not later than 5:00 p.m. (New York City time) on ,
2000 as shall be designated by the Manager. The time and date of such payment
and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated , 2000, and the Prospectus Supplement dated , 2000,
including the following:
Terms of Debt Securities
Maturity Date: ,
------------- --- -----
Interest Rate: ,
------------- --- -----
Redemption Provisions: ,
------------- --- -----
Interest Payment Dates: and
------------- ----
------------- ----
commencing
---------------
,
--- ------
[(Interest accrues from: , )]
------------- --- -----
Form and Denomination:
-------------
[Other Terms:]
[The commission to be paid to the Underwriters in respect of the
Offered Securities purchased pursuant to Delayed Delivery Contracts arranged by
the Underwriters shall be % of the principal amount of the Debt Securities so
purchased.]
All provisions contained in the document entitled ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
Underwriting Agreement Standard Provisions (Debt Securities) dated ,
2000, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that (i)
if any term defined in such document is otherwise defined herein, the definition
set forth herein shall control and (ii) all references in such document to a
type of agreement that has not been entered into in connection with the
transactions contemplated hereby shall not be deemed to be a part of this
Agreement.
The Offered Securities will be made available for checking and
packaging at the office of at at least 24 hours prior
to the Closing Date.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[NAME OF MANAGER]
Acting severally on behalf of itself and the several
Underwriters named herein
By:
-------------------------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By:
-------------------------------------
Name:
Title:
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SCHEDULE I
DELAYED DELIVERY CONTRACT
, 2000
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a
Michigan corporation (the "COMPANY"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto (the
"SECURITIES"), offered by the Company's Prospectus dated ,
2000 and Prospectus Supplement dated , 2000, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "DELIVERY DATE."
Payment for the Securities which the undersigned has agreed to purchase
on each 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
, New York, N.Y., at 10:00 a.m. (New York City
time) on the Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, 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 five full
business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Agreement; that the obligation of the undersigned to take
delivery of and make payment for the Securities on the Delivery Date shall be
subject to the conditions that (1) the purchase of Securities to be made by the
undersigned shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which the undersigned is subject and (2) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"UNDERWRITERS") named in the Prospectus
26
Supplement referred to above of, such part of the Securities as is to be sold to
them. Promptly after completion of sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned as 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. The undersigned
represents 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 governs such investment.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this Agreement.
This Agreement 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.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
----------------------------------------
(Purchaser)
By:
-------------------------------------
-------------------------------------
(Title)
-------------------------------------
(Address)
Accepted:
▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
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By:
----------------------------------
Name:
Title:
3
28
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
TELEPHONE NO.
NAME (INCLUDING AREA CODE) DEPARTMENT
------------------------------------ --------------------- ---------------------
------------------------------------ --------------------- ---------------------
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SCHEDULE A
SECURITIES:
PRINCIPAL AMOUNTS OR NUMBERS TO BE PURCHASED:
PURCHASE PRICE:
DELIVERY: