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EXHIBIT 1.1
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FORM OF PURCHASE AGREEMENT
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
(a Delaware corporation)
__% Senior Notes due 2006
PURCHASE AGREEMENT
Dated:_________________, 1996
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▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
(a Delaware corporation)
___% Senior Notes due __________, 2006
PURCHASE AGREEMENT
____________, 1996
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CHASE SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
As Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule A
(the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), its ___% Senior Notes due 2006 (the "Securities"). The
Securities are to be sold to each Underwriter, acting severally and not jointly,
in the respective principal amounts as are set forth in Schedule A opposite the
name of such Underwriter. The Securities are to be issued pursuant to an
indenture to be dated as of , 1996 (the "Indenture") between
the Company and The First National
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Bank of Chicago, trustee (the "Trustee"). The Securities and the Indenture are
more fully described in the Prospectus referred to below.
You have advised us that you and the other Underwriters,
acting severally and not jointly, desire to purchase the Securities and that you
have been authorized by the other Underwriters to execute this Agreement and the
Price Determination Agreement referred to below on their behalf.
The principal amount and certain terms of the Securities, and
the purchase price of the Securities to be paid by the Underwriters, shall be
agreed upon by the Company and the Representatives, acting on behalf of the
several Underwriters, and such agreement shall be set forth in a separate
written instrument substantially in the form of Exhibit A hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take the form
of an exchange of any standard form of written telecommunication between the
Company and the Representatives and shall specify such applicable information as
is indicated in Exhibit A hereto. The offering of the Securities will be
governed by this Agreement, as supplemented by the Price Determination
Agreement. From and after the date of the execution and delivery of the Price
Determination Agreement, this Agreement shall be deemed to incorporate, and all
references herein to "this Agreement" shall be deemed to include, the Price
Determination Agreement.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Registration No. 333- ______ ) covering the registration of the Securities
under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus, or prospectuses, and either (A) has prepared and
proposes to file, prior to the effective date of such registration statement, an
amendment to such registration statement, including a final prospectus or (B) if
the Company has elected to rely upon Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
will prepare and file a prospectus, in accordance with the provisions of Rule
430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act Regulations, promptly after
execution and delivery of the Price Determination Agreement. Additionally, if
the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, the Company will prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b), promptly after
execution and delivery of the Price Determination Agreement. The information, if
any, included in such prospectus that was omitted from the prospectus included
in such registration statement at the time it becomes effective but that is
deemed, (i) pursuant to paragraph (b) of Rule 430A, to be part of such
registration statement at the time it becomes effective is referred to herein as
the "Rule 430A Information", and (ii) pursuant to paragraph (d) of Rule 434, to
be part of such registration statement at the time it becomes effective is
referred to herein as "Rule 434 Information". Each prospectus used before the
time such registration statement becomes effective, and any prospectus that
omits the Rule 430A
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Information or the Rule 434 Information, if applicable, that is used after such
effectiveness and prior to the execution and delivery of the Price Determination
Agreement, is herein called a "preliminary prospectus". Such registration
statement, including the exhibits thereto and the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the 1933 Act ("Item
12"), as amended, and Rule 412 of the 1933 Act Regulations ("Rule 412") at the
time it becomes effective and including, if applicable, the Rule 430A
Information or the Rule 434 Information, is herein called the "Original
Registration Statement". Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement", and the Original Registration Statement and any Rule
462(b) Registration Statement are herein referred to collectively as the
"Registration Statement". The prospectus, including the documents incorporated
by reference therein pursuant to Item 12 and Rule 412, included in the Original
Registration Statement at the time it becomes effective is herein called the
"Prospectus", except that, (i) if the final prospectus first furnished to the
Underwriters after the execution of the Price Determination Agreement for use in
connection with the offering of the Securities differs from the prospectus
included in the Original Registration Statement at the time it becomes effective
(whether or not such prospectus is required to be filed pursuant to Rule
424(b)), the term "Prospectus" shall refer to the final prospectus first
furnished to the Underwriters for such use, and (ii) if Rule 434 is relied upon,
the term "Prospectus" shall refer to the preliminary prospectus last furnished
to the Underwriters in connection with the offering of the Securities, in each
case together with the Term Sheet.
The Company understands that the Underwriters propose to make
a public offering of the Securities as soon as you deem advisable after the
Registration Statement becomes effective, the Price Determination Agreement has
been executed and delivered and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
Section 1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and when the Registration Statement or any
post-effective amendment thereto shall become effective and at all
times subsequent thereto up to the Closing Time referred to below, (A)
the Registration Statement and the Prospectus, including any amendments
and supplements thereto, will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
requirements of the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations"); (B) neither
the Registration Statement nor any amendment or supplement thereto will
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
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statements therein not misleading; (C) neither the Prospectus nor any
amendment or supplement thereto will include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and (D) if Rule 434 is relied
upon, the Prospectus shall not be "materially different", as such term
is used in Rule 434, from the prospectus included in the Registration
Statement at the time it becomes effective; except that this
representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through you
expressly for use in the Registration Statement or the Prospectus or
any amendment or supplement thereof.
(ii) 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 filed with the Commission, complied in all material
respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the Prospectus, at the time
the Registration Statement becomes effective and at all times
subsequent thereto up to the Closing Time, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading.
(iii) (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,
(B) KPMG Peat Marwick, who have certified the financial statements of
NSK-▇▇▇▇▇▇ ▇.▇. ("NSK-▇▇▇▇▇▇") included or incorporated by reference in
the Registration Statement and the Prospectus and (C) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, who have certified the financial statements of ▇▇▇▇▇▇ Automotive
Inc, ▇▇▇▇▇▇ Automotive Group, Ltd., ▇▇▇▇▇▇ Automotive Systems GmbH,
Coltec Automotive Inc, and Performance Friction Products, a division of
Stemco Inc, an indirect, wholly-owned subsidiary of Coltec Industries
Inc. (collectively, the "Coltec Subsidiaries"), 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.
(iv) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement; and this Agreement has been duly authorized, executed and
delivered by the Company.
(v) The consolidated financial statements and the related
notes of the Company, its Subsidiaries (as defined below) and the
Coltec Subsidiaries included or
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incorporated by reference in the Registration Statement present fairly
the consolidated financial position of the Company, its Subsidiaries
and the Coltec Subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company, its
Subsidiaries and the Coltec 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.
(vi) 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
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.
(vii) The Company's only subsidiaries are set forth in Exhibit
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
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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.
(viii) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization".
(ix) The 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
description thereof in the Prospectus.
(x) The Securities have been duly authorized by the
Company. 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 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' 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 Securities conform to the description thereof in the
Prospectus.
(xi) 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.
(xii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
described in the Registration Statement or any amendment or supplement
thereto, there has not been (A) any
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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, (B) 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 (C) 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.
(xiii) 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 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 (A) 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 and
the Subsidiaries, considered as one enterprise or (B) 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.
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(xiv) 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, 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 Securities or for the execution,
delivery or performance of the Indenture by the Company.
(xv) Except as disclosed 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.
(xvi) 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.
(xvii) 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 (A) are described in the
Prospectus or (B) 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.
(xviii) 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 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
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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.
(xix) 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.
(xx) 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.
(xxi) 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 Securities.
(xxii) Except as disclosed in the Registration Statement 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, (A) the Company and the
Subsidiaries are each in compliance with all applicable Environmental
Laws, (B) 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,
(C) there are no pending or threatened Environmental Claims against the
Company or any Subsidiary, and (D) there are no circumstances with
respect to any property or operations of the Company or the
Subsidiaries that could
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reasonably be anticipated to form the basis of an Environmental Claim
against the Company or the Subsidiaries.
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.
(xxiii) 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.
(xxiv) 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
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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 ▇▇▇▇-▇▇▇▇▇▇
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.
(xxv) The Securities have been approved for listing on the New
York Stock Exchange, Inc.
(b) Any certificate signed by any officer of the Company or
any Subsidiary and delivered to you or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
Section 2. Sale and Delivery to the Underwriters; Closing. (a)
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price to be agreed upon by the Representatives
and the Company in accordance with Section 2(b) or 2(c), and set forth in the
Price Determination Agreement, the principal amount of Securities set forth
opposite the name of such Underwriter in Schedule A. If the Company elects to
rely on Rule 430A, Schedule A may be attached to the Price Determination
Agreement.
(b) If the Company has elected not to rely upon Rule 430A,
the initial public offering price of the Securities, the purchase price of the
Securities to be paid by the several Underwriters and certain other principal
terms of the Securities shall be agreed upon and set forth in the Price
Determination Agreement, dated the date hereof, and an amendment to the Original
Registration Statement containing such information will be filed before the
Original Registration Statement becomes effective.
(c) If the Company has elected to rely upon Rule 430A, the
initial public offering price of the Securities, the purchase price of the
Securities to be paid by the several Underwriters and certain other principal
terms of the Securities shall be agreed upon and set
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forth in the Price Determination Agreement. In the event that the Price
Determination Agreement has not been executed by the close of business on the
fourteenth business day following the later of the date on which the Original
Registration Statement and any Rule 462(b) Registration Statement becomes
effective, this Agreement shall terminate forthwith, without liability of any
party to any other party except that Sections 6, 7 and 8 shall remain in effect.
(d) Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by the Company and you, at 10:00 A.M. either (i) on the
third full business day after the later of the effective date of the Original
Registration Statement and any Rule 462(b) Registration Statement (or, if
pricing of the Securities occurs after 4:30 P.M. Eastern time, on the fourth
full business day thereafter), or (ii) if the Company has elected to rely upon
Rule 430A, on the third full business day after execution of the Price
Determination Agreement (or, if pricing of the Securities occurs after 4:30 P.M.
Eastern time, on the fourth full business day thereafter)(unless, in either
case, postponed pursuant to Section 10), or at such other time not more than ten
full business days thereafter as you and the Company shall determine (such date
and time of payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer in immediately available
funds against delivery of the Securities to you for the respective accounts of
the several Underwriters.
(e) The Securities shall be in such denominations ($1,000 or
an integral multiple thereof) and registered in such names as you may request in
writing at least two full business days before the Closing Time. The Securities,
which may be in temporary form, will be made available in New York City for
examination and packaging by you not later than 10:00 A.M. on the business day
prior to the Closing Time.
(f) It is understood that each Underwriter has authorized
you, for its account, to accept delivery of, receipt for, and make payment of
the purchase price for, the Securities that it has agreed to purchase. You,
individually and not as Representatives, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Underwriter whose check or checks shall not have been received by the Closing
Time.
Section 3. Certain Covenants of the Company. The Company
covenants with each Underwriter as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and, if the Company elects
to rely upon Rule 430A and subject to Section 3(b) hereof, will comply
with the requirements of Rule 430A and
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will notify you immediately, (i) when the Registration Statement, or
any post-effective amendment to the Registration Statement, shall have
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission to amend
the Registration Statement or amend or supplement the Prospectus or for
additional information and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of
the Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of 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 such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, (including any filing under
Rule 462(b)), file a Term Sheet or file or make any amendment or
supplement (i) if the Company has not elected to rely upon Rule 430A,
to the Prospectus (including amendments of the documents incorporated
by reference into the Prospectus) or (ii) if the Company has elected to
rely upon Rule 430A, to either the prospectus included in the Original
Registration Statement at the time it becomes effective or to the
Prospectus (including amendments of the documents incorporated by
reference into the prospectus or to the Prospectus pursuant to Item 12
and Rule 412), of which you shall not have previously been advised and
furnished a copy, or to which you or counsel for the Underwriters shall
reasonably object in writing.
(c) The Company has furnished or will furnish to you and
counsel for the Underwriters, without charge, as many copies (including
at least 1 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 deliver to each Underwriter, without
charge, from time to time until the later of the effective date of the
Original Registration Statement and any Rule 462(b) Registration
Statement (or, if the Company has elected to rely upon Rule 430A, until
the time the Price Determination Agreement is executed and
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delivered), as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The
Company will deliver to each Underwriter, without charge, as soon as
the Registration Statement shall have become effective (or, if the
Company has elected to rely upon Rule 430A, as soon as practicable on
or after the Price Determination Agreement has been executed and
delivered) and thereafter from time to time as requested during the
period when the Prospectus is required to be delivered under the 1933
Act, such number of copies of the Prospectus (as supplemented or
amended) as such Underwriter may reasonably request.
(e) 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 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 Act
Regulations to be delivered in connection with sales of the 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 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, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement or the Prospectus comply
with such requirements.
(f) The Company will use its best efforts in cooperation with
the Underwriters to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions
as you may designate and to maintain such qualifications in effect for
a period of not less than one year from the later of the effective date
of the Original Registration Statement and any Rule 462(b) Registration
Statement; 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 file such statements and reports
as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above provided. The Company will also
supply you with such information as is
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necessary for the determination of the legality of the Securities for
investment under the laws of such jurisdictions as you may request.
(g) 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, an earnings statement of the
Company (in form complying with the provisions of Rule 158 of the 1933
Act Regulations), covering a period of 12 months beginning after the
later of the effective date of the Original Registration Statement and
any Rule 462(b) Registration Statement and covering a period of 12
months beginning after the effective date of any post-effective
amendment to the Registration Statement but not later than the first
day of the Company's fiscal quarter next following such respective
effective dates.
(h) The Company will use the net proceeds received by it from
the sale of the Securities in the manner specified in the Prospectus
under the caption "Use of Proceeds".
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act subsequent to the time the Registration
Statement becomes effective.
(j) For a period of two years after the Closing Time, the
Company will furnish to you and, upon request, to each Underwriter,
copies of all annual reports, quarterly reports and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company
to its stockholders or security holders generally.
(k) Between the date hereof and the Closing Time, the Company
will not, without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities issued or guaranteed by the
Company with a maturity of more than one year in any public offering
(other than the Securities). This limitation is not applicable to the
public offering of tax exempt securities guaranteed by the Company.
(l) If the Company has elected to rely upon Rule 430A, it will
take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was
not, it will promptly file such prospectus.
(m) If the Company has elected to rely on Rule 434, it will
comply with the requirements of Rule 434, and the Prospectus will not
be "materially different," as
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such term is used in Rule 434, from the prospectus included in the
Registration Statement at the time it becomes effective.
(n) 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 Price Determination
Agreement and (ii) the time confirmations are sent or given, as
specified by Rule 462(b).
(o) If applicable, the Company will comply with all the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida statutes, and all regulations promulgated thereunder relating
to issuers doing business in Cuba.
(p) The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange on the date of
the Price Determination Agreement.
(q) The Company agrees that, at its expense, (i) as soon as
practicable after the Closing Time and the effectiveness of a
registration statement with respect to the Securities, it will promptly
prepare a registration statement under the Securities Act in connection
with the market-making activities of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated ("MLPF&S") with respect to the Securities issued in
accordance with this agreement containing such disclosures as may be
required by the Securities Act and other applicable laws and such other
disclosures as are customary and appropriate for such a document and
file such registration statement and use its best efforts to cause such
registration statement to become effective under the Securities Act as
soon as practicable thereafter or (ii) in lieu of the registration
statement in clause (i) hereof, the Company will cause the Registration
Statement to contain alternative pages in connection with the
market-making activities of MLPF&S with respect to the Securities, and
that, in the case of either clause (i) or (ii) hereof, it will keep
such registration statement in effect as long as is required by the
Securities Act in the reasonable judgment of MLPF&S to engage in
market-making activities. The Company agrees to obtain from its
independent accountants, at its expense, on each effective date of such
registration statement, a letter addressed to MLPF&S dated such date
covering matters described in Section 5(▇-▇), modified as appropriate
to reflect the registered nature of the Securities, in each case in
form and substance satisfactory to MLPF&S. The Company agrees to
furnish to MLPF&S as many copies of the Prospectus and of each report
of the Company filed with the Commission pursuant to Section 13 or 15
of the Exchange Act as MLPF&S shall reasonably request in connection
with its market-making activities. If a "qualified independent
underwriter" is required by the National Association of Securities
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Dealers, Inc. ("NASD") in connection with such market-making
activities, the Company shall pay such underwriter's fee (in a
customary amount for transactions of this type and amount) and expenses
and to indemnify such underwriter on customary terms. Such qualified
independent underwriter shall be a firm selected by MLPF&S and
reasonably agreed upon by the Company.
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 (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and distribution of
this Agreement (except for the Price Determination Agreement), the Indenture,
the Securities, the Blue Sky Survey (which shall not be typeset) and the Legal
Investment Survey, if any, (c) the delivery of the Securities to the
Underwriters, (d) the fees and disbursements of the Company's counsel and
accountants, (e) the qualification of the Securities under the applicable
securities laws in accordance with Section 3(f) and any filing for review of the
offering with the National Association of Securities Dealers, Inc., including
filing fees and reasonable fees and disbursements of Shearman & Sterling as
counsel for the Underwriters solely in connection therewith, and in connection
with the Blue Sky Survey, (f) the listing fees and expenses incurred in
connection with listing the Securities on the New York Stock Exchange (g) the
Legal Investment Survey, if any, (h) any fees charged by rating agencies for
rating the Securities and (i) the fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee, in connection with the
Indenture and the Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company shall reimburse the Underwriters
for all 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 Price Determination Agreement, the
obligations of the several Underwriters to purchase and pay for the Securities
that they have respectively agreed to purchase hereunder are subject to the
accuracy of the representations and warranties of the Company contained herein
(including those contained in the Price Determination Agreement) 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:
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(a) The Original Registration Statement shall have become
effective not later than 5:30 P.M. on the date of this Agreement or,
with your consent, at a later time and date not later, however, than
5:30 P.M. on the first business day following the date hereof and if
the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective not later than the
earlier of (i) 9:00 A.M. Eastern time on the day following the date of
the Price Determination Agreement, and (ii) the time confirmations are
sent or given, as specified by Rule 462(b), or, with respect to the
Original Registration Statement, at such later time or on such later
date as you may agree to in writing with the approval of a majority in
interest of the several Underwriters; and at the 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 your knowledge or
the knowledge of the Company, shall be contemplated by the Commission,
and any request made to the Company on the part of the Commission for
additional information with respect to the Registration Statement shall
have been complied with to the satisfaction of Shearman & Sterling as
counsel for the Underwriters. If the Company has elected to rely upon
Rule 430A, a prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of
Rule 430A).
If the Company has elected to rely upon Rule 434, a Term
Sheet, which together with the preliminary prospectus last furnished to
the Underwriters in connection with the offering of the Securities
shall not be "materially different," as such term is used in Rule 434,
from the prospectus included in the Original Registration Statement at
the time it becomes effective, shall have been filed with the
Commission in accordance with Rule 424(b).
(b) At the Closing Time, you shall have received 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 C hereto.
(c) At the Closing Time, you shall have received 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 D hereto.
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(d) At the Closing Time, you shall have received 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 E
hereto.
(e) At the Closing Time, you shall have received 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 Sections 5(b), 5(c) and 5(d) 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 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.
(f) 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, the Company shall have complied in all material respects
with Rule 430A (if it shall have elected to rely thereon) and Rule 434
(if it shall have elected to rely thereon) 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
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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(a) 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.
(g) 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;
(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 January 1, 1996, 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
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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 [September 30], 1996 and at a specified date
not more than five 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 [October 1], 1996 to a
specified date not more than five 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 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:
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(A) read the Pro Forma Statement;
(B) made inquiries of certain officials of the
Company and of the Coltec Subsidiaries 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.
(h) 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 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;
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(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 since
April 1, 1996, 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 [September 30], 1996 and at a specified date
not more than five 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 [October 1], 1996 to a
specified date not more than five 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.
(i) At the time that this Agreement is executed, you shall
have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 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 Coltec Subsidiaries and the Company 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 the Coltec
Subsidiaries 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, the 1934 Act, the 1933 Act
Regulations and the 1934 Act Regulations;
(ii) they have read the latest available unaudited interim
consolidated financial statements of the Coltec Subsidiaries,
the minutes of all meetings of the stockholders and directors
of the Coltec Subsidiaries and each Committee of the Boards of
Directors since January 1, 1996, inquired of certain officials
of the Coltec Subsidiaries responsible for financial and
accounting matters, and
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made such other inquiries and performed such other procedures
as may be specified in such letter, and officials of the
Coltec Subsidiaries stated that:
(A) at June 17, 1996, there was no change in
the capital stock of the Coltec Subsidiaries or any
decrease in the consolidated net current assets or
stockholders' equity of the Coltec Subsidiaries or
any increase in long-term debt of the Coltec
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
(B) for the period from April 1, 1996 to May
31, 1996, there was no decrease in net sales,
earnings before income taxes or net earnings, in each
case as compared with the comparable period in the
preceding year, except in each case for any decreases
that the Registration Statement discloses have
occurred or may occur; and
(iii) based upon the procedures set forth in clause
(ii) above, nothing has come to their attention that gives
them reason to believe that the information set forth in the
latest available unaudited interim consolidated financial
statements of the Coltec Subsidiaries 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.
(j) At the Closing Time, you shall have received from each of
Deloitte & Touche LLP, KPMG Peat Marwick and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP 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(g), 5(h) and 5(i),
respectively, except that the specified date referred to shall be a
date not more than five days prior to the Closing Time.
(k) Subsequent to the execution and delivery of this 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 Securities, by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the 1933 Act.
26
25
(l) At the 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 sale of the Securities as contemplated in this Agreement and
the matters referred to in Section 5(e) and in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company, the performance of any of the covenants of
the Company, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company at or prior to the
Closing Time in connection with the sale of the Securities as
contemplated in this Agreement shall be reasonably satisfactory in form
and substance to you and to counsel for the Underwriters.
(m) The Securities shall have been duly authorized for listing
by the New York Stock Exchange on the date of the Price Determination
Agreement, subject only to official notice of issuance thereof and
notice of a satisfactory distribution of the Securities.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement, this Agreement may
be terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 4 hereof. Notwithstanding any
such termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act 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 an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, 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, or if Rule 434 is used, if the Prospectus is
"materially different", as such term is used in Rule 434, from the
prospectus included in the Original Registration Statement at the time
it becomes effective;
27
26
(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 with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(c) hereof, 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 subparagraph (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), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
Insofar as this indemnity agreement may permit indemnification
for liabilities under the 1933 Act of any person who is a partner of an
Underwriter or who controls an Underwriter within the meaning of Section 15 of
the 1933 Act or 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) 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 Section 6(a), 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), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by ▇▇▇▇▇▇▇ ▇▇▇▇▇ through you expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
28
27
the Rule 434 Information, if applicable, or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties
indemnified pursuant to Section 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 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, 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.
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 45 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 30 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 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
29
28
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 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 the Company on the one hand and
the Underwriters on the other hand in connection with the offering of the
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
Securities pursuant to this Agreement (before deducting 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, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
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 Securities underwritten by it and
distributed to the public were offered to the public
30
29
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 Securities set forth
opposite their respective names in Schedule A hereto 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 the Company or any Underwriter within the meaning of Section
15 of the 1933 Act and will survive delivery of and payment for the Securities.
Section 9. Termination of Agreement. (a) You may terminate
this Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this 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 change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in your judgment, impracticable to market the Securities or
enforce contracts for the sale of the 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 in the Nasdaq National Market has been suspended or
materially limited, or minimum or
31
30
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 National Association of Securities Dealers, Inc. or any
other governmental authority or (iv) if a banking moratorium has been declared
by either federal, New York or Illinois authorities.
(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.
(c) This Agreement may also terminate pursuant to the
provisions of Section 2(c), with the effect stated in such Section.
Section 10. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Securities that it or they are obligated to purchase pursuant to this Agreement
(the "Defaulted Securities"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other Underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Securities
to be purchased pursuant to this Agreement, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in
the proportions that the principal amounts of Securities set forth
opposite the names of such non-defaulting Underwriters in Schedule A
bear to the total aggregate principal amount of Securities set forth
opposite the names of such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Securities to be
purchased pursuant to this Agreement, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration
32
31
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 you shall be directed to you, c/o Merrill Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, at ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters, North
Tower, World Financial Center, New York, New York 10281, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇; and notices to the Company shall be directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel.
Section 12. Parties. This Agreement is made solely for the
benefit of the several Underwriters, the Company and, to the extent expressed,
any person controlling the Company or any of the Underwriters, and the directors
of the Company, its officers who have signed the Registration Statement, and
their respective executors, administrators, successors and assigns and, subject
to the provisions of Section 10, no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser, as such purchaser, from any of the several
Underwriters of the Securities. All of the obligations of the Underwriters
hereunder are several and not joint.
Section 13. Representation of Underwriters. You will act for
the several Underwriters in connection with this financing, and any action under
or in respect of this Agreement taken by you as Representatives will be binding
upon all Underwriters.
Section 14. 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.
Section 15. Counterparts. This 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.
-------------------------
33
32
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
By: ________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CHASE SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By________________________
Name:
Title:
Investment Banking Group
For themselves and as Representatives of the
other Underwriters named in Schedule A.
34
SCHEDULE A
Principal Amount
of Securities
Underwriter to Be Purchased
----------- ----------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated.......... $
Chase Securities Inc. .....................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...........................
NationsBanc Capital Markets, Inc. .........................
Total.......................................................
---------------
$
===============
35
Exhibit A
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
(a Delaware corporation)
__% Senior Notes due ________, 2006
PRICE DETERMINATION AGREEMENT
___________, 1996
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CHASE SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
As Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated ___________,
1996 (the "Purchase Agreement") between ▇▇▇▇-▇▇▇▇▇▇ Automotive, Inc. (the
"Company") and the several Underwriters named in Schedule A thereto or hereto
(the "Underwriters"), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Chase Securities Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and NationsBanc Capital Markets, Inc. are acting as representatives
(the "Representatives"). The Purchase Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and conditions set forth
therein, of the Company's __% Senior Notes due ___________, 2006 (the
36
A-2
"Securities"). This Agreement is the Price Determination Agreement referred to
in the Purchase Agreement. Terms not defined herein are used herein as defined
in the Purchase Agreement.
Pursuant to Section 2 of the Purchase Agreement, the Company
agrees with the Representatives as follows:
1. The initial public offering price of the Securities shall
be _____% of the principal amount thereof, plus accrued interest[, if
any,] from _______, 1996.
2. The purchase price of the Securities to be paid by the
several Underwriters shall be _____% of the principal amount thereof,
plus accrued interest[, if any,] from __________, 1996 to the Closing
Time.
3. The interest rate to be borne by the Securities shall be
_____% per annum.
4. The Securities will mature on _________, 2006.
The Company represents and warrants to each of the
Underwriters that the representations and warranties of the Company set forth in
Section 1(a) of the Purchase Agreement are accurate as though expressly made at
and as of the date hereof.
Additionally, if the Company elects to rely on Rule 462(b),
the Company covenants to each of the Underwriters that:
(a) the Company will file a Rule 462(b) Registration Statement in
compliance with, and that is effective upon filing pursuant
to, Rule 462(b) prior to the time confirmations are sent or
given, as specified in Rule 462(b) of the 1933 Act; and
(b) the Company will give irrevocable instructions for
transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 of the 1933 Act Regulations or the
Commission will have received payment of such filing fee upon
filing of the Rule 462(b) Registration Statement.
As contemplated by Section 2 of the Purchase Agreement,
attached as Schedule A is a completed list of the several Underwriters, which
shall be a part of this Agreement and the Purchase Agreement.
This Agreement shall be governed by the laws of the State of
New York.
--------------------
37
A-3
If the foregoing is in accordance with the understanding of
the Representatives of the agreement between the Underwriters and the Company,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts and together with the Purchase
Agreement, shall be a binding agreement between the Underwriters and the Company
in accordance with its terms and the terms of the Purchase Agreement.
Very truly yours,
▇▇▇▇-▇▇▇▇▇▇ AUTOMOTIVE, INC.
By: ________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CHASE SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By________________________
Name:
Title:
Investment Banking Group
For themselves and as Representatives of the
other Underwriters named in Schedule A.
38
Exhibit B
SUBSIDIARIES
Percent of
Capital Stock
Beneficially Owned by
▇▇▇▇-▇▇▇▇▇▇ Automotive,
Name of Subsidiary Inc. or the Subsidiaries
------------------ ------------------------
▇▇▇▇-▇▇▇▇▇▇ Automotive Powertrain Systems Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive South Asia Corporation 100
▇▇▇▇▇-▇▇▇▇▇▇ Pvt., Ltd. 60
Huazhong Warner Transmission Company 60
▇▇▇▇-▇▇▇▇▇▇ Automotive Powertrain
Service Center Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Powdered Metals Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Diversified Transmission
Products Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Air/Fluid Systems Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Air/Fluid Systems
Corporation of Michigan 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Control Systems Holding Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Control Systems Europe S.A.S. 90
Societe de l'Usine de la Marque 100
▇▇▇▇-▇▇▇▇▇▇ Automotive ▇▇▇▇▇ TEC Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive (Canada) Ltd. 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Japan Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive K.K. 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Taiwan Co., Ltd. 100
B.W. Componentes Mexicanos de Transmissiones S.A. de C.V. 86
▇▇▇▇▇ TEC Europe, Sp.A 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Foreign Sales Corporation 100
39
B-2
▇▇▇▇-▇▇▇▇▇▇ Automotive Automatic Transmission Systems Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Europe Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive GmbH 100
Borg & ▇▇▇▇ Torque Systems, Inc. 100
▇▇▇▇-▇▇▇▇▇▇ Automotive-NW Corporation 100
▇▇▇▇-▇▇▇▇▇▇ Automotive Korea, Inc. 60
Creon Insurance Agency, Ltd. 100
Creon Trustees, Ltd. 100
Coltec Automotive Inc. 100
Coltec Industries Inc. 100
Stemco Inc. 100
Performance Friction Products 100
▇▇▇▇▇▇ Automotive Inc. 100
▇▇▇▇▇▇ Automotive Group, Ltd. 100
▇▇▇▇▇▇ Automotive Systems GmbH 100