<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 6, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FORD HOLDINGS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
38-2890269
(I.R.S. EMPLOYER IDENTIFICATION NO.)
The American Road, Dearborn, Michigan 48121
(313) 322-3000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
JOHN M. RINTAMAKI, Esq.
Ford Holdings, Inc.
The American Road
Dearborn, Michigan 48121
(313) 322-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
Copy to:
Arbie R. Thalacker, Esq.
Shearman & Sterling
599 Lexington Ave.
New York, New York 10022
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
------------------------
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING
BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON
A DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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<S> <C> <C> <C> <C>
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PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE* PRICE* FEE**
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Preferred Stock.............................. 5,000 Shares $100,000 $500,000,000 $172,415
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Depositary Shares............................ *** None None None
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</TABLE>
* Estimated solely for the purpose of determining the amount of the
registration fee.
** Pursuant to Rule 457(a) of the Securities Act of 1933, as amended, the
amount of the registration fee is the product of 1/29th of 1% and the
proposed maximum aggregate offering price of the Preferred Stock.
*** There are also being registered hereunder Depositary Shares, the number of
which has not as yet been determined, to be evidenced by Depositary Receipts
issued pursuant to a Deposit Agreement. In the event the Registrant elects
to offer to the public fractional interests in shares of the Preferred Stock
registered hereunder, Depositary Receipts will be distributed to those
persons purchasing such fractional interests and the shares of Preferred
Stock will be issued to the Depositary under the Deposit Agreement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION, DATED DECEMBER 6, 1994
FORD HOLDINGS, INC.
5,000 SHARES -- PREFERRED STOCK, ISSUABLE IN SERIES
(LIQUIDATION PREFERENCE -- $100,000 PER SHARE)
-------------------------
Ford Holdings, Inc. (the "Company") from time to time may issue in one or
more series Preferred Stock (as defined herein) on terms to be determined at
time of sale. The accompanying Prospectus Supplement (the "Prospectus
Supplement") sets forth specifically with regard to the series of Preferred
Stock in respect of which this Prospectus is being delivered:
- the specific designation;
- the aggregate number of shares offered;
- the dividend rate or method of calculation thereof;
- the dividend periods or the method of calculation thereof;
- the application of any auction and/or remarketing procedures;
- any other specific terms of such series;
- whether the shares of such series will be represented by Depositary
Shares; and
- any underwriter or agent, if any, for the Preferred Stock being offered
and its compensation.
The Preferred Stock may be sold by the Company directly to purchasers,
through agents designated from time to time, through underwriting syndicates led
by one or more managing underwriters or through one or more underwriters acting
alone. If the Company, directly or through agents, solicits offers to purchase
the Preferred Stock, the Company reserves the sole right to accept and, together
with its agents, to reject in whole or part, any proposed purchase of Preferred
Stock. See "Plan of Distribution".
If any agent of the Company, or any underwriter, is involved in the sale of
the Preferred Stock offered hereby, the name of such agent or underwriter and
any applicable commissions or discounts will be set forth in, or may be
calculated from, the Prospectus Supplement, and the net proceeds to the Company
from such sale will be the purchase price of such Preferred Stock less such
commissions or discounts and the other attributable issuance and distribution
expenses. The aggregate net proceeds to the Company from the sale of all the
Preferred Stock will be the public offering or purchase price of the Preferred
Stock sold less the aggregate of such commissions and discounts and other
expenses of issuance and distribution. See "Plan of Distribution" for possible
indemnification arrangements for agents or underwriters.
This Prospectus may not be used to consummate sales of Preferred Stock
unless accompanied by a Prospectus Supplement.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
The date of this Prospectus is December , 1994
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
following Regional Offices of the Commission: Seven World Trade Center, 13th
Floor, New York, New York 10048 and 500 West Madison St., 14th Floor, Chicago,
Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. Such reports and other information also are available
for inspection at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the securities offered hereby. This Prospectus does not contain all
the information set forth in the Registration Statement and the exhibits and
schedules thereto, certain portions of which have been omitted pursuant to the
rules and regulations of the Commission. The information so omitted may be
obtained from the Commission's principal office in Washington, D.C. upon payment
of the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
Company's Annual Report on Form 10-K for the year ended December 31, 1993 (the
"1993 10-K Report"), the Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1994, June 30, 1994 and September 30, 1994 (the "1994
10-Q Reports") and the Company's Current Report on Form 8-K dated August 3, 1994
filed pursuant to Section 13 of the Exchange Act.
In addition, all reports filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of securities offered by the accompanying
Prospectus Supplement shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
The Company undertakes to provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, on the written or
oral request of any such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents).
Written or telephonic requests should be directed to Ford Holdings, Inc., The
American Road, Dearborn, Michigan 48121, Attention: Treasurer (Telephone
313-322-3000).
------------------------
THIS PROSPECTUS CONTAINS BRIEF SUMMARIES OF CERTAIN MORE DETAILED
INFORMATION CONTAINED IN DOCUMENTS INCORPORATED HEREIN BY REFERENCE. SUCH
SUMMARIES ARE QUALIFIED IN THEIR ENTIRETY BY THE DETAILED INFORMATION CONTAINED
IN THE INCORPORATED DOCUMENTS.
------------------------
The following information, which is being disclosed pursuant to Florida
law, is accurate as of the date of this Prospectus: Autolatina-Comercio,
Negocios e Participacoes Ltda., a Brazilian company ("Autolatina"), is a joint
venture between Ford Motor Company ("Ford") and Volkswagen AG in which Ford has
a 49% ownership interest. Autolatina occasionally sells vehicles to persons
located in Cuba. Each such sale is made pursuant to a specific license granted
to Ford by the U.S. Department of Treasury. The last such sale, which involved
one medical supply vehicle, was made to Cubanacan in April 1991. Current
information concerning Autolatina's or its Ford-related affiliates' business
dealings with the government of Cuba or with persons located in Cuba may be
obtained from the State of Florida Department of Banking and Finance at The
Capitol Building, Suite 1401, Tallahassee, Florida 32399-0350 (telephone number
904-488-0545).
2
<PAGE> 4
THE COMPANY
The Company was incorporated in Delaware in September 1989 for the
principal purpose of acquiring, owning and managing certain assets of Ford. The
Company's primary activities consist of consumer and commercial financing
operations, insurance underwriting and equipment leasing. These activities are
conducted through its principal wholly owned subsidiaries, Associates First
Capital Corporation and its subsidiaries ("The Associates"), The American Road
Insurance Company and its subsidiaries ("American Road"), USL Capital
Corporation and its subsidiaries ("USL Capital"), Ford Motor Land Development
Corporation and its subsidiaries ("Ford Land") and Ford Leasing Development
Company and its subsidiaries ("Ford Leasing"). As a holding company, the Company
has no employees of its own and American Road, Ford Land and Ford Leasing have
no employees of their own; their operations are conducted by employees of Ford,
Ford Motor Credit Company ("Ford Credit"), a wholly owned subsidiary of Ford,
and other Ford subsidiaries pursuant to management service agreements. See Item
13, "Certain Relationships and Related Transactions" of the 1993 10-K Report and
Note 16 of the Notes to Financial Statements included in the 1993 10-K Report.
The Associates, formerly a subsidiary of Paramount Communications Inc., was
acquired by the Company on October 31, 1989. The Associates' primary business
activities are consumer finance, commercial finance and insurance underwriting.
The Associates conducts its operations primarily through its principal operating
subsidiary, Associates Corporation of North America ("ACONA").
American Road is principally engaged in underwriting insurance with respect
to coverages for physical damage on vehicles financed through Ford Credit,
credit life and credit disability insurance in connection with retail vehicle
financing and extended service plan products covering vehicle repairs on retail
contracts. In addition, Ford Life Insurance Company, a wholly owned subsidiary
of American Road, offers single premium deferred annuities.
The principal business of USL Capital is the leasing and financing of
office and other business and commercial equipment, the leasing and management
of rail cars and commercial auto fleets, the leasing and financing of commercial
aircraft and industrial and energy facilities, and equipment financing for state
and local governments.
Ford Land's principal business is real estate development and Ford
Leasing's principal business is the leasing of dealership facilities to
franchised Ford vehicle dealers.
All the outstanding Common Stock of the Company, representing 75% of the
combined voting power of all classes of capital stock of the Company, is owned,
directly or indirectly, by Ford. The balance of the capital stock, consisting of
shares of Flexible Rate Auction Preferred Stock (Exchange) ("Flex APS"), Series
A Cumulative Preferred Stock ("Series A Preferred Stock"), Series B Cumulative
Preferred Stock ("Series B Preferred Stock"), Series C Cumulative Preferred
Stock ("Series C Preferred Stock") and Series D Cumulative Preferred Stock
("Series D Preferred Stock"), accounts for the remaining 25% of the total voting
power; none of such shares of preferred stock is held, directly or indirectly,
by Ford.
The Company intends to pay dividends on the Preferred Stock primarily from
cash dividends received from its subsidiaries. The ability of the subsidiaries
to pay dividends to the Company is dependent upon the subsidiaries'
profitability, regulatory requirements, and other factors, and is subject to
restrictive covenants in their debt instruments. Such restrictions include a
limitation on the payment of cash dividends by ACONA on its common stock in any
year to not more than 50% of consolidated net earnings for such year, subject to
certain exceptions, plus increases in contributed capital and extraordinary
gains. In addition, insurance regulatory requirements of the State of Michigan
restrict payment of dividends by American Road. See Note 14 of the Notes to
Financial Statements included in the 1993 10-K Report.
The principal executive office of the Company is located at The American
Road, Dearborn, Michigan 48121, and its telephone number is (313) 322-3000.
3
<PAGE> 5
SELECTED FINANCIAL DATA OF THE COMPANY AND SUBSIDIARIES
The following table sets forth selected consolidated financial information
regarding the operating results and financial position of the Company and its
subsidiaries. The amounts shown for the years ended or at December 31, 1989
through 1993 and for the nine months ended or at September 30, 1994 and 1993
represent the consolidated operating results and financial position of the
subsidiaries of the Company then owned, directly or indirectly, by Ford. The
reorganizations of these subsidiaries, which occurred in October 1989, have been
accounted for at historical cost in a manner similar to a pooling-of-interests
combination. This table includes The Associates' results for the two-month
period ended December 31, 1989 and for the entirety of all subsequent periods.
The unaudited pro forma adjustments for 1989 reflect the estimated interest
expense, net of related income taxes, that the Company would have incurred on
the zero coupon note issued in connection with the transfer from Ford to the
Company of USL Capital's domestic operations as if such transfer had occurred on
November 1, 1987, the date USL Capital was acquired by Ford. The unaudited pro
forma net income for 1989 does not purport to represent what the Company's net
income actually would have been had the zero coupon note in fact been issued on
November 1, 1987.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
OR AT SEPTEMBER 30 YEARS ENDED OR AT DECEMBER 31
-------------------- --------------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
-------- -------- -------- -------- -------- -------- --------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF INCOME
INFORMATION
Total revenue.............................. $ 4,295 $ 3,925 $ 5,292 $ 4,817 $ 4,814 $ 4,361 $ 2,018
Interest expense........................... 1,439 1,304 1,751 1,658 1,718 1,563 383
Insurance claims........................... 326 387 498 567 664 672 530
Other expenses............................. 1,845 1,635 2,212 2,004 1,840 1,670 819
-------- -------- -------- -------- -------- -------- --------
Income before income taxes and cumulative
effects of changes in accounting
principles............................... 685 599 831 588 592 456 286
Provision for income taxes and minority
interest................................. 250 236 320 231 208 186 88
-------- -------- -------- -------- -------- -------- --------
Net income before cumulative effects of
changes in accounting principles......... 435 363 511 357 384 270 198
Cumulative effects of changes in accounting
principles............................... -- -- -- 26 -- -- --
-------- -------- -------- -------- -------- -------- --------
Net income................................. $ 435 $ 363 $ 511 $ 383 $ 384 $ 270 $ 198
======= ======= ======= ======= ======= =======
Pro forma adjustments (Unaudited):
Interest on zero coupon note............... 25
Related taxes.............................. 8
--------
Pro forma net income (Unaudited)........... $ 181
=======
Dividends paid on preferred stock.......... $ 66 $ 51 $ 73 $ 48 $ 48 $ 59 $ 2
CONSOLIDATED BALANCE SHEET INFORMATION
Cash and securities........................ $ 5,840 $ 5,022 $ 5,100 $ 3,659 $ 2,981 $ 3,016 $ 3,110
Finance receivables, net................... 27,745 23,737 24,568 20,750 18,362 13,465 11,461
Investments in leases, net................. 5,637 5,142 5,415 4,607 3,718 3,161 2,929
Total assets............................... 42,636 37,415 38,599 32,731 28,780 23,564 21,757
Unearned insurance premiums................ 896 858 865 936 1,190 1,529 1,820
Debt....................................... 32,499 28,838 29,570 25,767 22,930 18,215 16,077
Stockholders' equity....................... 4,694 4,166 4,291 3,498 2,897 2,289 2,103
</TABLE>
4
<PAGE> 6
FINANCIAL REVIEW
OVERVIEW
The Company's net income in the third quarter of 1994 was $160 million, up
$24 million from the $136 million earned in the third quarter of 1993. The
increase resulted primarily from improved earnings at The Associates and USL
Capital, offset partially by lower earnings at American Road.
Consolidated results reflect the acquisition-related costs of purchasing
The Associates, including interest expense, goodwill, and adjustments to record
the fair value of net assets acquired. These adjustments will vary over time as
the acquired assets and liabilities liquidate.
RESULTS OF OPERATIONS
THIRD QUARTER 1994 COMPARED WITH THIRD QUARTER 1993
The Associates earned $151 million in the third quarter of 1994, compared
with $121 million a year ago. The increase reflected higher levels of earning
assets and improved net interest margins.
USL Capital earned $27 million in the third quarter of 1994, compared with
$16 million a year ago. The increase reflected primarily higher levels of
earning assets and lower operating costs. Results for USL Capital in the third
quarter of 1993 include a $6 million one-time charge to the provision for income
taxes to reflect restatement of deferred tax balances resulting from the August
1993 enactment of the Omnibus Budget Reconciliation Act in the U.S.
American Road earned $14 million in the third quarter of 1994, compared
with $27 million in the same period in 1993. The decrease reflected reduced
investment income from capital gains. Premiums written by American Road were $82
million in the third quarter of 1994, compared with $83 million a year ago.
FIRST NINE MONTHS 1994 COMPARED WITH FIRST NINE MONTHS 1993
The Company's net income in the first nine months of 1994 was $435 million,
up $72 million from the $363 million earned in the first nine months of 1993.
The increase resulted primarily from improved earnings at The Associates, USL
Capital and Ford Land, offset by lower earnings at American Road.
The Associates earned $400 million in the first nine months of 1994,
compared with $343 million a year ago. The increase reflected higher levels of
earning assets and improved net interest margins.
USL Capital's net income in the first nine months of 1994 was $75 million,
compared with $53 million a year ago. The increase reflected higher levels of
earning assets, lower operating costs and the non-recurrence of the unfavorable
one-time tax adjustment in 1993 for increased U.S. tax rates.
American Road earned $44 million in the first nine months of 1994, compared
with $67 million a year ago. The decrease reflected reduced investment income
from capital gains, partially offset by improved underwriting experience in
extended service plans. Premiums written by American Road were $241 million in
the first nine months of 1994, compared with $228 million a year ago. Ford Land
earned $8 million in the first nine months of 1994, up $8 million from the same
period in 1993. The improvement resulted primarily from a gain on sale of real
estate development property.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash and investments in securities totaled $5.8 billion at
September 30, 1994, up $740 million from December 31, 1993. The increase
reflected primarily higher net receipts from annuity contracts available for
investment by American Road.
5
<PAGE> 7
Net receivables and lease investments were $34.3 billion at September 30,
1994, up $3.4 billion from December 31, 1993. The increase reflected continued
growth in earning assets at The Associates. In September 1994, The Associates
acquired the credit card portfolio and certain other assets of Amoco Oil
Company. The fair value of assets acquired totaled $426 million. The transaction
was accounted for as a purchase.
Total debt was $32.5 billion at September 30, 1994, up $2.9 billion from
December 31, 1993. The increase resulted primarily from higher debt levels
required to finance growth in earning assets at The Associates.
The liability for annuity contracts was $2.5 billion at September 30, 1994,
up $875 million from December 31, 1993. The increase reflected continued growth
in single premium deferred annuities offered by Ford Life Insurance Company, a
wholly owned subsidiary of American Road. The volume of annuity contracts, which
are sold primarily through banks and brokerage firms, is expected to continue to
grow in the future.
In August 1994, the Company sold 2,000 shares of its Series D Preferred
Stock having an aggregate liquidation preference of $200 million.
At September 30, 1994, the Company had approximately $10.3 billion of
support facilities, all of which were contractually committed; less than 2% of
these facilities were in use at that date.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The ratio of "earnings" to "combined fixed charges and preferred stock
dividends" for the Company and its subsidiaries was as follows for each of the
periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED MARCH 31 YEARS ENDED DECEMBER 31
- ---------------- -------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
- ----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
1.4 1.4 1.4 1.3 1.3 1.2 1.6
</TABLE>
For purposes of computing the ratio of earnings to combined fixed charges
and preferred stock dividends, "earnings" include earnings before income taxes
and cumulative effects of changes in accounting principles, plus adjusted fixed
charges. "Combined fixed charges and preferred stock dividends" consist of
interest on borrowed funds, amortization of debt discount, premium, and issuance
expense, one third of all rental expense (the portion deemed representative of
the interest factor) and dividends paid on preferred stock. Preferred stock
dividend requirements have been increased to an amount representing the pre-tax
earnings which would be required to cover such dividends based on the Company's
effective income tax rates for the respective periods.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement
accompanying this Prospectus, it is anticipated that the net proceeds from the
sale of the Preferred Stock will be used for general corporate purposes,
including financing operations of the Company or its subsidiaries. Additional
equity financing, as well as short-term and long-term debt financing, may be
undertaken at such times, and through such means, as the Company deems
appropriate.
DESCRIPTION OF PREFERRED STOCK
GENERAL
As of the date of this Prospectus, except as otherwise set forth in the
Prospectus Supplement, the authorized capital stock of the Company consists of
10,000 shares of Common Stock, par value $1.00 per share ("Common Stock") and
100,000 shares of preferred stock, par value $1.00 per share ("Preferred
Stock"), issuable from time to time in series with such designations,
preferences and rights as are determined by the Board of Directors of the
Company (the "Board of Directors"). At December 1, 1994, there were outstanding
1,099 shares of Common Stock and 16,597.9718
6
<PAGE> 8
shares of Preferred Stock, 8,000 of which consisted of Flex APS, 2,864.9489
consisted of Series A Preferred Stock, 1,731.7872 consisted of Series B
Preferred Stock, 2,001.1632 consisted of Series C Preferred Stock and 2,000.0725
consisted of Series D Preferred Stock. On August 18, 1994, the Board of
Directors of the Company authorized the issuance of up to 82,899.5 shares of
Preferred Stock in series and authorized the Certificate of Designations
Committee of the Board of Directors (the "Committee") to establish and designate
series and to fix the number of shares and the relative rights, preferences and
limitations of the respective series of Preferred Stock (except for the voting
rights and liquidation preference of Preferred Stock which the Board of
Directors has fixed). The shares of Preferred Stock offered hereby, when issued
and sold, will be fully paid and nonassessable.
The following description of the terms of Preferred Stock sets forth
certain general terms and provisions of the shares of Preferred Stock offered
hereby to which any Prospectus Supplement may relate. Certain terms of any
series of Preferred Stock offered hereby and by any Prospectus Supplement will
be described in the Prospectus Supplement relating to such series. If so
indicated in the Prospectus Supplement, the terms of any such series may differ
from the terms set forth below.
The number of shares and all of the terms and conditions of the relative
rights, preferences and limitations of the respective series of Preferred Stock
as established by the Committee will be set forth in the Prospectus Supplement
accompanying this Prospectus relating to the particular series of Preferred
Stock offered thereby. The terms of a particular series of Preferred Stock may
differ, among other things, in (1) the number of shares that constitute such
series, (2) the dividend rate (or the method of calculation thereof) on the
shares of such series, (3) the dividend periods or the method of calculation
thereof, (4) the voting rights of the shares of such series (if different than
set forth herein), (5) the rights of the holders of shares of such series upon
the liquidation, dissolution or winding up of the Company (if different than set
forth herein), (6) whether or not the shares of the series will be subject to
auction and/or remarketing procedures, (7) the terms, if any, for redemption of
the shares of such series, (8) whether or not the shares of the series may be
issued pursuant to a preferred stock purchase contract, and (9) the other rights
and privileges and any qualifications, limitations or restrictions of such
rights or privileges of such series.
In addition, as described under "Description of Depositary Shares" below,
the Company, at its option, may elect to offer depositary shares ("Depositary
Shares") evidenced by depositary receipts, each representing a fraction (to be
specified in the Prospectus Supplement relating to the particular series of
Preferred Stock) of a share of the particular series of Preferred Stock issued
and deposited with a depositary, in lieu of offering full shares of such series
of Preferred Stock.
When issued, each series of Preferred Stock will rank on a parity with each
other series of Preferred Stock, the Flex APS, the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock as to dividends and upon liquidation. Subject to the terms of
any issued series of Preferred Stock, the remaining shares of undesignated
Preferred Stock may be issued by the Company in one or more series, at any time
or from time to time, with such designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions thereof, as the Board of Directors or any duly authorized
committee thereof shall determine, all without further action of the
stockholders, including holders of such series of Preferred Stock, of the
Company.
The transfer agent, dividend disbursing agent and registrar, which may be
the Company, for any series of Preferred Stock will be set forth in the
Prospectus Supplement relating to such series.
The following statements are brief summaries of certain provisions that may
be contained in the Certificate of Designations designating and establishing the
terms of a series of Preferred Stock, do not purport to be complete and are
qualified in their entirety by reference to such Certificate of
7
<PAGE> 9
Designations, a draft form of which has been filed as an exhibit to the
Registration Statement, and by reference to the Company's Certificate of
Incorporation. The resolutions to be set forth in the Certificate of
Designations will be adopted by the Board of Directors or the Committee prior to
the issuance of a series of Preferred Stock, and such Certificate of
Designations will be filed with the Secretary of State of the State of Delaware
as soon thereafter as reasonably practicable. In the event the Company elects to
issue Depositary Shares, each representing a fraction of a share of a particular
series of Preferred Stock, subject to the terms of the Deposit Agreement (as
hereinafter defined), each such Depositary Share will be entitled, in proportion
to the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividends, voting, and liquidation rights). See
"Description of Depositary Shares".
DIVIDENDS
Holders of shares of a series of Preferred Stock will be entitled to
receive, when, as and if declared by the Board of Directors or a duly authorized
committee thereof out of funds of the Company legally available for payment,
cumulative cash dividends at an annual rate set forth in, or determined or
calculated in accordance with the method or formula set forth in, and on the
dates, for the periods and otherwise in the manner set forth in, the Certificate
of Designations of such series of Preferred Stock, all as described in the
Prospectus Supplement relating to such series of Preferred Stock. Unless
otherwise provided in such Certificate of Designations and described in such
Prospectus Supplement, dividends on such series of Preferred Stock will be
payable in arrears to holders of record as they appear on the stock records of
the Company at the close of business on such record dates, not exceeding 60 days
preceding the payment dates thereof, as shall be fixed by the Board of Directors
or the Committee. Unless otherwise provided in such Certificate of Designations
and described in such Prospectus Supplement, dividends will be cumulative from
the date of original issue of such series, whether or not in any dividend period
or periods there shall be funds of the Company legally available for the payment
of such dividends. Accumulations of dividends on shares of any series of
Preferred Stock will not bear interest.
So long as any shares of a series of Preferred Stock are outstanding, the
Company may not declare, pay or set apart for payment any dividend (other than a
dividend in shares of, or options, warrants or rights to subscribe for or
purchase shares of, Common Stock or Junior Stock (as defined below)) or other
distribution in respect of its Common Stock or any other stock of the Company
ranking junior to the shares of such series of Preferred Stock as to dividends
or upon liquidation ("Junior Stock"), or call for redemption, redeem, purchase
or otherwise acquire for consideration any shares of its Common Stock or Junior
Stock (except by conversion into or exchange for other shares of Common Stock or
Junior Stock) unless full cumulative dividends on all shares of such series of
Preferred Stock for all past dividend periods shall have been declared and paid
(or declared and a sum sufficient for the payment of the dividends set apart for
payment). No dividends may be declared or paid or set apart for payment on any
shares of such series of Preferred Stock unless full cumulative dividends have
been or contemporaneously are declared and paid on each of the shares of such
series of Preferred Stock and the shares of all other Preferred Stock (including
the Flex APS, the Series A Preferred Stock, the Series B Preferred Stock, the
Series C Preferred Stock and the Series D Preferred Stock) ranking on a parity
as to dividends with such series of Preferred Stock ("Parity Preferred") through
the most recent applicable dividend payment date for such shares. In addition,
the Company may not purchase or otherwise acquire any shares of such series of
Preferred Stock during any period when dividend payments on any outstanding
shares of such series of Preferred Stock or Parity Preferred are in arrears.
RIGHTS ON LIQUIDATION OR CASH MERGER
Except as may be otherwise set forth in the Prospectus Supplement, upon the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, the holders of a series
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of Preferred Stock will be entitled to receive, out of assets of the Company
available for distribution to stockholders after satisfying claims of creditors
but before any payment or distribution of assets is made to holders of Common
Stock or another stock of the Company ranking junior to such series of Preferred
Stock upon liquidation ("Junior Liquidation Stock"), a liquidating distribution
in the amount of $100,000 per share of such series of Preferred Stock, plus an
amount per share equal to accumulated and unpaid dividends thereon (whether or
not declared) to and including the date of final dissolution. If upon the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary, the assets of the Company available for distribution to the holders
of such series of Preferred Stock and all other Preferred Stock (including the
Flex APS, the Series A Preferred Stock, the Series B Preferred Stock, the Series
C Preferred Stock and the Series D Preferred Stock) ranking, upon liquidation,
on a parity with such series of Preferred Stock are insufficient to pay the full
amount of the liquidating distribution to which they are entitled, then the
holders of such series of Preferred Stock and such other Preferred Stock will
share ratably in any such distribution. Unless and until payment in full has
been made to the holders of such series of Preferred Stock of the liquidating
distributions to which they are entitled, no dividends or distributions will be
made to the holders of the Common Stock or Junior Liquidation Stock, no payment
or delivery or commitment to make payment or delivery of any money or assets to
an affiliate of the Company will be made and no purchase, redemption or other
acquisition for any consideration by the Company will be made in respect of the
Common Stock or Junior Liquidation Stock. After payment of the full amount of
the liquidating distributions to which they are entitled, the holders of
Preferred Stock (in their capacities as such holders) will have no right or
claim to any of the remaining assets of the Company.
In any merger or consolidation of the Company with or into any other
corporation (including any affiliated corporation), or any merger or
consolidation of any other corporation (including any affiliated corporation)
with or into the Company, which merger or consolidation by its terms provides
for the payment of only cash to holders of a series of Preferred Stock, each
holder of such series of Preferred Stock will be entitled to receive an amount
equal to the liquidation preference of the shares of Preferred Stock held by
such holder, plus an amount equal to accumulated and unpaid dividends on such
shares to the date of payment thereof, and no more, in exchange for such shares
of Preferred Stock (a "cash-out merger transaction").
Neither the sale, lease or exchange (for cash, stock, securities or other
consideration) of all or substantially all of the property and assets of the
Company, nor the merger or consolidation of the Company with or into any other
corporation, nor the merger or consolidation of any other corporation with or
into the Company, shall be deemed to be a dissolution, liquidation or winding
up, voluntary or involuntary; provided, however, that a cash-out merger
transaction will be deemed to be a liquidation of the Company solely for
purposes of determining the rights of the holders of Preferred Stock in respect
of such cash-out merger transaction.
VOTING RIGHTS
Except as may be otherwise set forth in the Prospectus Supplement, holders
of Preferred Stock shall have the following voting rights:
Election of Directors. Holders of record of a series of Preferred Stock and
Voting Preferred (as defined below) will have the right, voting as a single
class together with all Parity Preferred, to elect a number of directors of the
Company (the "Regular Preferred Directors") which is equal to the smallest whole
number that is not less than 25% of the directors of the Company. Holders of all
such stock will vote in such elections on the basis of one vote per $100,000
liquidation preference and not cumulatively and the holder or holders of
one-third of the shares of such stock then outstanding, present in person or by
proxy, will constitute a quorum for the election of directors by them.
Other Matters. On all matters other than the election of directors as to
which stockholders generally have a vote, each share of a series of Preferred
Stock and Voting Preferred will be entitled to such number of votes as
determined below and each share of Common Stock will be entitled to
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one vote. The shares of such series of Preferred Stock will vote together as a
single class with all shares of Common Stock and all other shares of Preferred
Stock (including the Flex APS, the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock)
having the same voting rights as conferred upon such series of Preferred Stock
in the Certificate of Designations thereof as described in this paragraph and
the next preceding paragraph (the "Voting Preferred"). Holders of such series of
Preferred Stock and Voting Preferred will be entitled to the number of votes
determined pursuant to the following formula per $100,000 liquidation
preference:
X = [(Y divided by .75) minus Y] divided by Z
X: number of votes per share of such series of Preferred Stock and Voting
Preferred per $100,000 liquidation preference.
Y: number of shares of outstanding Common Stock on the applicable record
date.
Z: amount equal to (I) number of shares of such series of Preferred Stock
outstanding on the applicable record date plus (II) sum of the
liquidation preference of all outstanding Voting Preferred on the
applicable record date divided by 100,000.
The Company will mail or cause its agent to mail to registered holders of the
Preferred Stock notice of any meeting of stockholders not less than 20 days nor
more than 60 days prior to the date fixed for such meeting.
Based on the current number of directors on the Board of Directors of the
Company, the holders of a series of Preferred Stock, Voting Preferred and Parity
Preferred will be entitled to nominate and elect two directors, and assuming all
of the shares of Preferred Stock offered hereby are issued and outstanding and
based on the number of outstanding shares of Common Stock, Flex APS, Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock as of December 1, 1994, each share of such series of Preferred
Stock (and each share of Flex APS, Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and Series D Preferred Stock) will be entitled
to 0.0169615 votes on matters other than elections of directors as to which
stockholders generally have a vote.
Right to Elect Two Additional Directors. In addition, during any period
(referred to herein as a "Default Period") when dividend payments on any shares
of a series of Preferred Stock or Parity Preferred for such number of dividend
periods or portions thereof (or the equivalent thereof in the case of Parity
Preferred), which in the aggregate contain at least 540 days, shall not have
been paid or declared and a sum sufficient for the payment thereof set aside for
payment, then in any such case the number of directors of the Company will
automatically be increased by two additional directors and the holders of record
of such series of Preferred Stock and Parity Preferred will possess full voting
powers (to the exclusion of the holders of all other series and classes of
capital stock of the Company), voting as a single class, to elect such two
directors (the "Special Preferred Directors").
The Default Period and voting rights created by the occurrence of the
circumstances described in the next preceding paragraph will continue unless and
until all accumulated and unpaid dividends on such series of Preferred Stock and
Parity Preferred then outstanding shall have been paid or sufficient funds for
the payment thereof shall have been set apart, at which time the voting rights
described in the next preceding paragraph will cease, subject always, however,
to the revesting of such voting power in the holders of such series of Preferred
Stock and Parity Preferred upon the further occurrence of any of the
circumstances described in the next preceding paragraph.
Within five days following the accrual of any right of the holders of a
series of Preferred Stock and Parity Preferred to elect directors upon the
occurrence of a Default Period as described above, the Company will mail or
cause to be mailed to the holders of such series of Preferred Stock and Parity
Preferred notice of a special meeting of stockholders for a date not less than
20 days nor more than 60 days after the date of such notice. If the Company does
not mail or cause to be mailed
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notice of such meeting as provided in the next preceding sentence, a meeting may
be called by any holder of such series of Preferred Stock or Parity Preferred.
The date on which such right accrued will be the record date for determining the
holders of stock entitled to notice of and to vote at the special meeting.
Holders of all such stock will vote in such elections on the basis of one vote
per $100,000 liquidation preference and not cumulatively, and the holder or
holders of one-third of the shares of such stock then outstanding, present in
person or by proxy, will constitute a quorum for the election of directors by
them. At any such meeting or adjournment thereof in the absence of a quorum, a
majority of the holders of such stock present in person or by proxy will have
the power to adjourn the meeting for the election of directors without notice,
other than an announcement at the meeting, until a quorum is present.
The term of office of all persons who are directors of the Company at the
time of such meeting will continue, notwithstanding the election of Special
Preferred Directors at such meeting by the holders of such series of Preferred
Stock and Parity Preferred. The Regular Preferred Directors and the Special
Preferred Directors, together with the incumbent directors elected by the
holders of the Common Stock, will constitute the duly elected directors of the
Company.
Simultaneously with the expiration of the Default Period, the term of
office of the Special Preferred Directors elected by the holders of such series
of Preferred Stock and Parity Preferred at the special meeting referred to above
will terminate, the number of directors of the Company will automatically be
decreased by two, only the Regular Preferred Directors and the incumbent
directors otherwise elected by the holders of the Common Stock will constitute
the duly elected directors of the Company, and the right of the holders of such
series of Preferred Stock and Parity Preferred to elect directors during a
Default Period as provided above will cease.
Removal of Directors. Except as provided in the next preceding paragraph,
Regular Preferred Directors and Special Preferred Directors will (subject to the
provisions of any applicable law) be subject to removal only by the vote of the
holders of a majority of the outstanding shares of a series of Preferred Stock,
Voting Preferred and Parity Preferred in the case of Regular Preferred Directors
and a majority of the outstanding shares of such series of Preferred Stock and
Parity Preferred in the case of Special Preferred Directors, in each case,
voting together as a single class. Any vacancy in the Board of Directors
occurring by reason of such removal or otherwise may be filled by vote of a
majority of the outstanding shares of such series of Preferred Stock, Voting
Preferred and Parity Preferred in respect of any Regular Preferred Director and
by a vote of a majority of the outstanding shares of such series of Preferred
Stock and Parity Preferred in respect of any Special Preferred Director, in each
case, voting together as a single class, in person or by proxy at a special
meeting of stockholders called and held in accordance with the provisions set
forth above, and, if not so filled, such vacancy will (subject to the provisions
of any applicable law) be filled by a vote of a majority of the remaining
Regular Preferred Directors and any Special Preferred Directors.
Right to Vote in Certain Events. Without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of a series of
Preferred Stock voting in person or by proxy at a special meeting for the
purpose, or the unanimous written consent of the holders of the outstanding
shares of such series of Preferred Stock acting without such a meeting (subject
to the provisions of any applicable law), the Company may not amend, alter or
repeal any provisions of the Certificate of Designations or the Certificate of
Incorporation so as to affect adversely the preferences, special rights or
powers of the shares of such series of Preferred Stock. Any increase in the
authorized number of any series of capital stock ranking on a parity with such
series of Preferred Stock with respect to the payment of dividends or the
distribution of assets, or creation, authorization or issuance of any securities
convertible into, or warrants, options or similar rights to purchase, acquire or
receive, shares of such capital stock or reclassification of any authorized
capital stock of the Company into any share ranking on a parity with such series
of Preferred Stock with respect to the payment of dividends or the distribution
of assets shall be deemed not to affect adversely the preferences, special
rights or powers of the shares of such series of Preferred Stock.
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In addition, without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of a series of Preferred Stock and Parity
Preferred, voting together as a single class, in person or by proxy at a special
meeting for the purpose, or the unanimous written consent of the holders of the
outstanding shares of such series of Preferred Stock and Parity Preferred acting
without such a meeting (subject to the provisions of any applicable law), the
Company may not create, authorize or issue shares of any class or series of
capital stock ranking senior to the shares of such series of Preferred Stock and
Parity Preferred with respect to the payment of dividends or the distribution of
assets, or create, authorize or issue any securities convertible into, or
warrants, options or similar rights to purchase, acquire or receive, shares of
capital stock ranking senior to the shares of such series of Preferred Stock and
Parity Preferred with respect to the payment of dividends or the distribution of
assets or reclassify any authorized capital stock of the Company into any shares
ranking senior to the shares of such series of Preferred Stock and Parity
Preferred with respect to the payment of dividends or the distribution of
assets.
Without the affirmative vote of the holders of a majority of the
outstanding shares of a series of Preferred Stock, Voting Preferred and Parity
Preferred, voting together as a single class, in person or by proxy at a special
meeting for the purpose, or the unanimous written consent of the holders of the
outstanding shares of such series of Preferred Stock, Voting Preferred and
Parity Preferred acting without such a meeting (subject to the provisions of any
applicable law), the Company may not sell, lease or convey all or substantially
all of the assets of the Company, or consolidate or merge with or into any other
corporation unless, in the case of a consolidation or merger, each holder of
shares of such series of Preferred Stock, Voting Preferred and Parity Preferred
shall receive, upon such consolidation or merger, an amount in cash equal to the
liquidation preference, premium, if any, and accumulated and unpaid dividends
through the date of payment of such shares of such series of Preferred Stock,
Voting Preferred and Parity Preferred in exchange for such shares of such series
of Preferred Stock, Voting Preferred and Parity Preferred. As discussed under
"Rights on Liquidation or Cash Merger" above, a cash-out merger transaction
shall be deemed to be a liquidation solely for purposes of determining the
rights of the holders of such series of Preferred Stock in respect of such
cash-out merger transaction.
No Right to Vote in Certain Events. With respect to any right of the
holders of shares of a series of Preferred Stock to vote on any matter, whether
such right is created by the Certificate of Designations thereof, by applicable
law or otherwise, no holder of any share of such series of Preferred Stock will
be entitled to vote and no share of such series of Preferred Stock will be
deemed to be outstanding for the purpose of voting or determining the number of
shares required to constitute a quorum, if prior to or concurrently with a
determination of shares entitled to vote or of shares deemed outstanding for
quorum purposes, as the case may be, such share is held beneficially or of
record by the Company or any affiliate of the Company.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event such
option is exercised, the Company will issue receipts for Depositary Shares, each
of which will represent a fraction (to be set forth in the Prospectus Supplement
relating to a particular series of Preferred Stock) of a share of a particular
series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the
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applicable fraction of a share of Preferred Stock represented by such Depositary
Share, to all the rights and preferences of the Preferred Stock represented
thereby (including dividend, voting and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of the related series of Preferred Stock in accordance with the terms of the
offering described in the related Prospectus Supplement. Copies of the forms of
Deposit Agreement and Depositary Receipt are filed as exhibits to the
Registration Statement of which this Prospectus is a part, and the following
summary is qualified in its entirety by reference to such exhibits.
Pending the preparation of definitive engraved Depositary Receipts, the
Depositary may, upon the written order of the Company, issue temporary
Depositary Receipts substantially identical to (and entitling the holders
thereof to all the rights pertaining to) the definitive Depositary Receipts but
not in definitive form. Definitive Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the related series of Preferred Stock to
the record holders of Depositary Shares relating to such series of Preferred
Stock in proportion to the number of such Depositary Shares owned by such
holders, subject to certain obligations of holders to file proofs, certificates
and other information and to pay certain charges and expenses to the Depositary;
provided, however, that in case the Company or the Depositary withholds from any
cash dividend or other cash distribution in respect of such series of Preferred
Stock represented by the Depositary Receipts held by any holder an amount on
account of taxes, the amount made available for distribution or distributed in
respect of Depositary Shares represented by such Depositary Receipts subject to
such withholding will be reduced accordingly.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, subject to certain obligations of holders to file proofs,
certificates and other information and to pay certain charges and expenses to
the Depositary, unless the Depositary determines that it is not feasible to make
such distribution, in which case the Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders or adopt such method as it deems equitable or practicable for the
purpose of effecting such distribution.
WITHDRAWAL OF STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the Depositary, the holder of the Depositary Shares evidenced thereby is
entitled to delivery at such office to or upon his order, of the number of whole
shares of the related series of Preferred Stock and any money or other property
represented by such Depositary Shares. Holders of Depositary Shares will be
entitled to receive whole shares of the related series of Preferred Stock on the
basis set forth in the related Prospectus Supplement for such series of
Preferred Stock, but holders of such whole shares of Preferred Stock will not
thereafter be entitled to receive Depositary Shares therefor. If the Depositary
Receipts delivered by the holder evidence a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of the related series of Preferred Stock to be withdrawn, the Depositary
will deliver to such holder at the same time a new Depositary Receipt evidencing
such excess number of Depositary Shares.
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VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of a series of
Preferred Stock are entitled to vote, or upon receipt of any consent to
corporate action without a meeting, the Depositary will mail the information
contained in such notice of meeting or such consent to the record holders of the
Depositary Shares relating to such series of Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as the
record date for such series of Preferred Stock) will be entitled to instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
such series of Preferred Stock represented by such holder's Depositary Shares.
The Depositary will endeavor, insofar as practicable, to vote or to give or to
withhold consent with respect to the amount of such series of Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all reasonable action which may be deemed
necessary by the Depositary in order to enable the Depositary to do so. The
Depositary will abstain from voting shares of such series of Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Shares representing such series of Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended at any time by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the holders of Depositary Shares will not be
effective unless such amendment has been approved by the holders of at least a
majority of the Depositary Shares then outstanding.
The Deposit Agreement may be terminated by the Company upon not less than
60 days' notice whereupon the Depositary shall deliver or make available to each
holder of Depositary Receipts, upon surrender of the Depositary Receipts held by
such holder, such number of whole or fractional shares of the related series of
Preferred Stock represented by such receipts. The Deposit Agreement will
automatically terminate if (i) there has been a final distribution in respect of
the related series of Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution has been
distributed to the holders of Depositary Receipts or (ii) each share of the
related series of Preferred Stock shall have been exchanged for cash in a
cash-out merger transaction.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay the fees and expenses of the Depositary in connection with the
performance of its duties under the Deposit Agreement. Holders of Depositary
Receipts will pay transfer and other taxes and governmental charges and such
other charges as are expressly provided in the Deposit Agreement to be for their
accounts.
MISCELLANEOUS
The Depositary will furnish to holders of Depositary Shares any reports and
communications from the Company which are received by the Depositary.
Neither the Company nor the Depositary will be liable if it is prevented
from or delayed in, by law or any circumstance beyond its control, performing
its obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performing their
duties thereunder without negligence or wilful misconduct, and the Company and
the Depositary will not be obligated to prosecute or defend any legal proceeding
in respect of any Depositary Shares or series of Preferred Stock unless
satisfactory indemnity is furnished. The Company and the Depositary may rely on
advice of counsel or accountants, or information provided
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by persons presenting Preferred Stock for deposit, holders of Depositary Shares
or other persons believed to be authorized or competent and on documents
believed to be genuine.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Depositary Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests or instructions received from the Company.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary, which successor Depositary must be appointed within 60
days after delivery of the notice of resignation or removal and must be a bank
or trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
PLAN OF DISTRIBUTION
Offers to purchase Preferred Stock are being considered by the Company on a
continuing basis. The Company may sell the Preferred Stock offered hereby to
underwriters or through agents or directly to purchasers. The Prospectus
Supplement will set forth the terms of the offering of any series of Preferred
Stock to which such Prospectus Supplement relates, including the name or names
of any underwriters or agents with whom the Company has entered into
arrangements with respect to the sale of such series of Preferred Stock, the
public offering or purchase price of such series of Preferred Stock and the net
proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, any discounts and commissions
allowed or paid to dealers, if any, any commissions allowed or paid to agents,
and the securities exchanges, if any, on which such series of Preferred Stock
will be listed. Dealer trading may take place in the Preferred Stock, including
Preferred Stock not listed on any securities exchange.
The Preferred Stock offered hereby may be purchased to be re-offered to the
public through underwriting syndicates led by one or more managing underwriters,
or through one or more underwriters acting alone. The underwriter or
underwriters with respect to an underwritten offering of a series of Preferred
Stock offered hereby will be named in the Prospectus Supplement relating to such
offering and, if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover page of such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase such series of Preferred Stock will be subject to
certain conditions precedent and each of the underwriters with respect to a sale
of such series of Preferred Stock will be obligated to purchase all of the
shares of such series of Preferred Stock if any are purchased. The initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Any series of Preferred Stock offered hereby may be offered and sold by the
Company directly or through agents designated by the Company from time to time.
Any agent involved in the offer and sale of such series of Preferred Stock in
respect of which this Prospectus is being delivered will be named, and any
commissions payable by the Company to such agent will be set forth, in the
Prospectus Supplement relating to such series. Unless otherwise indicated in the
Prospectus Supplement relating to such series, any such agent will be acting on
a best efforts basis for the period of its appointment.
Any underwriter or agent participating in the distribution of a series of
Preferred Stock offered hereby may be deemed to be an underwriter, as that term
is defined in the Securities Act, of such series of Preferred Stock so offered
and sold and any discounts or commissions received by them
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from the Company and any profit realized by them on the sale or resale of such
series of Preferred Stock may be deemed to be underwriting discounts and
commissions under the Securities Act.
Underwriters, agents and their controlling persons may be entitled, under
agreements entered into with the Company, to indemnification by the Company
against certain civil liabilities, including liabilities under the Securities
Act.
LEGAL OPINIONS
Except as may be otherwise specified in the Prospectus Supplement
accompanying this Prospectus, the legality of any series of Preferred Stock
offered hereby will be passed on for the Company by J.M. Rintamaki, Secretary of
the Company and of Ford and an Assistant General Counsel of Ford, and for any
underwriters or agents by Shearman & Sterling, 599 Lexington Avenue, New York,
N.Y. Except as may be otherwise specified in the Prospectus Supplement
accompanying this Prospectus, any tax matters with respect to any series of
Preferred Stock offered hereby will be passed on for the Company by Burton B.
Smoliar, an Associate General Counsel of Ford. Mr. Rintamaki and Mr. Smoliar are
full-time employees of Ford and own, and hold options to purchase, shares of
Common Stock of Ford, and Mr. Rintamaki owns depositary shares, each
representing 1/1,000 of a share of Series A Cumulative Convertible Preferred
Stock of Ford. Shearman & Sterling act as counsel to the Compensation and Option
Committee and the Audit Committee of the Board of Directors of Ford and
occasionally act as counsel to Ford and its subsidiaries in connection with
certain transactions.
EXPERTS
The financial statements of the Company which are incorporated in this
Prospectus by reference to the 1993 10-K Report have been audited by Coopers &
Lybrand, independent certified public accountants, to the extent indicated in
their report therein, and have been so incorporated in reliance on the report,
which includes an explanatory paragraph indicating that the Company changed its
methods of accounting for postretirement benefits other than pensions and income
taxes in 1992, of that firm given on their authority as experts in accounting
and auditing.
With respect to the unaudited interim financial information of the Company
for the periods ending March 31, 1994, June 30, 1994 and September 30, 1994,
incorporated in this Prospectus by reference to the 1994 10-Q Reports, Coopers &
Lybrand L.L.P. have reported that they have applied limited procedures in
accordance with professional standards for a review of such information.
However, their reports included in the 1994 10-Q Reports state that they did not
audit and they do not express an opinion on that interim financial information.
Accordingly, the degree of reliance on their reports on such information should
be restricted in light of the limited nature of the review procedures applied.
The accountants are not subject to the liability provisions of Section 11 of the
Securities Act for their reports on the unaudited interim financial information
because such reports do not constitute "reports" or a "part" of the registration
statement prepared or certified by the accountants within the meaning of
Sections 7 and 11 of the Securities Act.
16
<PAGE> 18
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the offering described in this Registration Statement:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........ $ 172,415.00
Printing and engraving..................................... 350,000.00
Accountants' fees.......................................... 50,000.00
Blue Sky fees and expenses................................. 75,000.00
Fees and expenses of agents and depositary................. 40,000.00
Rating Agency fees......................................... 75,000.00
Stock Exchange listing fees................................ 450,000.00
Miscellaneous expenses..................................... 100,000.00
-------------
Total............................................ $1,312,415.00
=============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides as follows:
145. Indemnification of officers, directors, employees and agents;
insurance --
(a) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably
II-1
<PAGE> 19
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b), or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made (1) by the board of
directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3) by
the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under the provisions of this section.
(h) For purposes of this Section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent
II-2
<PAGE> 20
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the corporation" as referred
to in this Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Article SEVENTH of the Company's Certificate of Incorporation includes the
following provisions:
LIMITATION ON LIABILITY OF DIRECTORS;
INDEMNIFICATION AND INSURANCE
3.1. LIMITATION ON LIABILITY OF DIRECTORS. A director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability
(i) for any breach of the director's duty of loyalty to the
corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this subsection 3.1 of Article SEVENTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
3.2. EFFECT OF ANY REPEAL OR MODIFICATION OF SUBSECTION 3.1. Any repeal or
modification of subsection 3.1 of this Article SEVENTH by the stockholders of
the corporation shall not adversely affect any right or protection of a director
of the corporation existing at the time of such repeal or modification.
3.3. INDEMNIFICATION AND INSURANCE.
3.3A. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the corporation or is or was serving at the request of the
corporation as a director, officer or employee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including penalties, fines,
judgments, attorneys' fees, amounts paid or to be paid in settlement and excise
taxes imposed on fiduciaries with respect to (i) employee benefit plans, (ii)
charitable organizations or (iii) similar matters) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director,
II-3
<PAGE> 21
officer or employee and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that the corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person (other than pursuant to
subsection 3.3b of this Article SEVENTH) only if such proceeding (or part
thereof) was authorized by the Board of Directors of the corporation. The right
to indemnification conferred in this subsection 3.3a of Article SEVENTH shall be
a contract right and shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to the
corporation of an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this subsection 3.3a
of Article SEVENTH or otherwise.
3.3B. RIGHT OF CLAIMANT TO BRING SUIT. If a claim which the corporation is
obligated to pay under subsection 3.3a of this Article SEVENTH is not paid in
full by the corporation within 60 days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
3.3C. MISCELLANEOUS. The provisions of this Section 3.3 of Article SEVENTH
shall cover claims, actions, suits or proceedings, civil or criminal, whether
now pending or hereafter commenced, and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this Section 3.3 of Article SEVENTH should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
3.3D. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 3.3 of Article SEVENTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-law,
agreement, vote of stockholders or disinterested directors or otherwise.
3.3E. INSURANCE. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
3.3F. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to
II-4
<PAGE> 22
be paid by the corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any agent of the corporation to the fullest
extent of the provisions of this Section 3.3 of Article SEVENTH with respect to
the indemnification and advancement of expenses of directors, officers and
employees of the corporation.
Pursuant to sales agency and underwriting agreements relating to offerings
of certain of its securities, certain sales agents and underwriters have agreed
to indemnify the Company, each officer and director of the Company and each
person, if any, who controls the registrant within the meaning of the Securities
Act of 1933, against certain liabilities, including liabilities under said Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ---------------------------------------------------------------------------------
<S> <C>
1 Form of Underwriting Agreement
4.1(a) Certificate of Incorporation of the Company
4.2(b) By-Laws of the Company, as amended through May 22, 1992
4.3 Form of Preferred Stock Certificate
4.4 Form of Certificate of Designations of the Preferred Stock
4.5 Form of Deposit Agreement (including form of Depositary Receipt) relating to the
Preferred Stock
4.6(c) Certificate of Designations of Flexible Rate Auction Preferred Stock (Exchange)
4.7(d) Certificate of Amendment to Certificate of Designations of Flexible Rate Auction
Preferred Stock (Exchange) filed December 27, 1991
4.8(e) Certificate of Amendment to Certificate of Designations of Flexible Rate Auction
Preferred Stock (Exchange) filed June 1, 1992
4.9(f) Certificate of Designations of the Series A Cumulative Preferred Stock
4.10(g) Deposit Agreement dated as of June 4, 1992 (including form of Depositary Receipt)
relating to the Series A Cumulative Preferred Stock
4.11(h) Certificate of Designations of the Series B Cumulative Preferred Stock
4.12(i) Deposit Agreement dated as of January 26, 1993 (including form of Depositary
Receipt) relating to the Series B Cumulative Preferred Stock
4.13(j) Form of Certificate of Designations of the Series C Cumulative Preferred Stock
4.14(k) Deposit Agreement dated as of August 30, 1993 (including form of Depositary
Receipt) relative to the Series C Cumulative Preferred Stock
4.15(l) Certificate of Designations of the Series D Cumulative Preferred Stock
4.16(m) Deposit Agreement dated as of August 10, 1994 (including form of Depositary
Receipt) relating to Series D Cumulative Preferred Stock
5 Opinion of J.M. Rintamaki, counsel to the Company and an Assistant General
Counsel of Ford, as to the legality of the securities offered hereby
12 Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
15 Letter of Coopers & Lybrand L.L.P. regarding unaudited interim financial
information
23.1 Consent of J.M. Rintamaki (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney
</TABLE>
- ------------
(a) Incorporated herein by reference to Exhibit 3.1 of the Registration
Statement on Form S-4 of the Company, File No. 33-35653.
II-5
<PAGE> 23
(b) Incorporated herein by reference to Exhibit 3-C of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(c) Incorporated herein by reference to Exhibit 4-A-1 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1990, File No. 0-18263.
(d) Incorporated herein by reference to Exhibit 4-A-2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1991, File No. 0-18263.
(e) Incorporated herein by reference to Exhibit 4-A-4 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(f) Incorporated herein by reference to Exhibit 4-A-5 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(g) Incorporated herein by reference to Exhibit 4-C-1 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(h) Incorporated herein by reference to Exhibit 4-A-6 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(i) Incorporated herein by reference to Exhibit 1-B of the Company's Current
Report on Form 8-K dated January 19, 1993, File No. 0-18263 or 33-32641.
(j) Incorporated herein by reference to Exhibit 2.7 of the Registration
Statement on Form 8-A of the Company, File No. 0-18263.
(k) Incorporated herein by reference to Exhibit 2.8 of the Registration
Statement on Form 8-A of the Company, File No. 1-11146 or 0-18263.
(l) Incorporated herein by reference to Exhibit 4.1 of the Company's Current
Report on Form 8-K dated August 11, 1994, File No. 1-11146 or 0-18263.
(m) Incorporated herein by reference to Exhibit 4.3 of the Company's Current
Report on Form 8-K dated August 11, 1994, File No. 1-11146 or 0-18263.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs 1(i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-6
<PAGE> 24
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-7
<PAGE> 25
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Ford Holdings, Inc., certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Detroit, Michigan, on the 6th day of December, 1994.
FORD HOLDINGS, INC.
By: J.M. DEVINE*
..................................
(J.M. Devine)
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------- --------------------------- -----------------
<S> <C> <C>
J. M. DEVINE* Chairman of the Board of
........................................ Directors and Chief
(J. M. DEVINE) Executive Officer and
Director (principal
executive officer)
E. S. ACTON* Vice President and
........................................ Director
(E. S. ACTON)
W. F. BLOOD* Vice President and
........................................ Director
(W. F. BLOOD)
M. S. MACDONALD* Vice President --
........................................ Treasurer and Director
(M. S. MACDONALD) (principal financial
officer)
D. N. MCCAMMON* Vice President and
........................................ Director
(D. N. MCCAMMON)
December 6, 1994
D. E. RICHARDSON* Director
........................................
(D. E. RICHARDSON)
H. JAMES TOFFEY, JR.* Director
........................................
(H. JAMES TOFFEY, JR.)
K. WHIPPLE* President and Chief
........................................ Operating Officer and
(K. WHIPPLE) Director
E. A. LAW* Vice President --
........................................ Controller (principal
(E. A. LAW) accounting officer)
*By: /s/ L. J. GHILARDI
........................................
(L. J. GHILARDI,
ATTORNEY-IN-FACT)
</TABLE>
II-8
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER NUMBER
- ------ ------
<S> <C> <C>
1 Form of Underwriting Agreement
4.1(a) Certificate of Incorporation of the Company
4.2(b) By-Laws of the Company, as amended through May 22, 1992
4.3 Form of Preferred Stock Certificate
4.4 Form of Certificate of Designations of the Preferred Stock
4.5 Form of Deposit Agreement (including form of Depositary Receipt) relating
to the Preferred Stock
4.6(c) Certificate of Designations of Flexible Rate Auction Preferred Stock (Ex-
change)
4.7(d) Certificate of Amendment to Certificate of Designations of Flexible Rate
Auction Preferred Stock (Exchange) filed December 27, 1991
4.8(e) Certificate of Amendment to Certificate of Designations of Flexible Rate
Auction Preferred Stock (Exchange) filed June 1, 1992
4.9(f) Certificate of Designations of the Series A Cumulative Preferred Stock
4.10(g) Deposit Agreement dated as of June 4, 1992 (including form of Depositary
Receipt) relating to the Series A Cumulative Preferred Stock
4.11(h) Certificate of Designations of the Series B Cumulative Preferred Stock
4.12(i) Deposit Agreement dated as of January 26, 1993 (including form of
Depositary Receipt) relating to the Series B Cumulative Preferred Stock
4.13(j) Form of Certificate of Designations of the Series C Cumulative Preferred
Stock
4.14(k) Deposit Agreement dated as of August 30, 1993 (including form of
Depositary Receipt) relative to the Series C Cumulative Preferred Stock
4.15(l) Certificate of Designations of the Series D Cumulative Preferred Stock
4.16(m) Deposit Agreement dated as of August 10, 1994 (including form of
Depositary Receipt) relating to Series D Cumulative Preferred Stock
5 Opinion of J.M. Rintamaki, counsel to the Company and an Assistant
General Counsel of Ford, as to the legality of the securities offered
hereby
12 Computation of Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends
15 Letter of Coopers & Lybrand L.L.P. regarding unaudited interim financial
information
23.1 Consent of J.M. Rintamaki (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney
</TABLE>
- ------------
(a) Incorporated herein by reference to Exhibit 3.1 of the Registration
Statement on Form S-4 of the Company, File No. 33-35653.
(b) Incorporated herein by reference to Exhibit 3-C of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(c) Incorporated herein by reference to Exhibit 4-A-1 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1990, File No. 0-18263.
(d) Incorporated herein by reference to Exhibit 4-A-2 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1991, File No. 0-18263.
<PAGE> 27
(e) Incorporated herein by reference to Exhibit 4-A-4 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(f) Incorporated herein by reference to Exhibit 4-A-5 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(g) Incorporated herein by reference to Exhibit 4-C-1 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(h) Incorporated herein by reference to Exhibit 4-A-6 of the Company's Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(i) Incorporated herein by reference to Exhibit 1-B of the Company's Current
Report on Form 8-K dated January 19, 1993, File No. 0-18263 or 33-32641.
(j) Incorporated herein by reference to Exhibit 2.7 of the Registration
Statement on Form 8-A of the Company, File No. 0-18263.
(k) Incorporated herein by reference to Exhibit 2.8 of the Registration
Statement on Form 8-A of the Company, File No. 1-11146 or 0-18263.
(l) Incorporated herein by reference to Exhibit 4.1 of the Company's Current
Report on Form 8-K dated August 11, 1994, File No. 1-11146 or 0-18263.
(m) Incorporated herein by reference to Exhibit 4.3 of the Company's Current
Report on Form 8-K dated August 11, 1994, File No. 1-11146 or 0-18263.
<PAGE> 1
Exhibit 1
FORD HOLDINGS, INC.
_____ Shares - Preferred Stock
(Liquidation Preference $100,000 Per Share)
Underwriting Agreement
_______________ ___, 199__
[Name[s] and Address of Representative[s]]
Ladies and Gentlemen:
Ford Holdings, Inc., a Delaware corporation (the "Company"), proposes from
time to time to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firm or firms named in
Schedule I to the applicable Pricing Agreement (such firm or firms constituting
the "Underwriters" with respect to such Pricing Agreement and the preferred
stock or depositary shares specified therein) (1) certain of the Company's
preferred stock (liquidation preference $100,000 per share) (the "Shares")
specified in Schedule II to such Pricing Agreement (such Shares, as so
specified in such Pricing Agreement, being herein sometimes referred to as the
"Designated Firm Preferred Shares"), and (2) where applicable, the Depositary
Shares (as defined below) which represent fractional interests in the
Designated Firm Preferred Shares (the "Designated Firm Depositary Shares").
The Designated Firm Preferred Shares, together with the Designated Firm
Depositary Shares, where applicable, are herein collectively called the
"Designated Firm Shares".
In addition, the Company may also propose to grant to the Underwriters the
option described in Section 3 to purchase in the aggregate all or any part of
the number of (1) additional Shares (the "Designated Option Preferred Shares")
and (2) where applicable, additional Depositary Shares which represent
fractional interests in additional Shares (the "Designated Option Depositary
Shares"), in each case, to cover overallotments. The Designated Firm Preferred
Shares, together with the Designated Option Preferred Shares, are herein
collectively called the "Designated Preferred Shares"; and the Designated Firm
Depositary Shares, together with the Designated Option Depositary Shares, are
herein
<PAGE> 2
2
collectively called the "Designated Depositary Shares". The Designated
Option Preferred Shares, together with the Designated Option Depositary Shares,
where applicable, are herein collectively called the "Designated Option
Shares"; and the Designated Firm Shares, together with all or any part of the
Designated Option Shares, are collectively herein called the "Designated
Shares".
The terms and rights of any particular issuance of Designated Shares shall
be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Shares may be made from time to time to
the Underwriters of such Designated Shares, for whom ___________________ will
act as representative[s] (the "Representative[s]")]. The term
"Representative[s]" also refers to ________________ when [it] [they] alone
constitute[s] the Underwriters. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the Designated Shares
or as an obligation of any of the Underwriters to purchase the
Designated Shares. The obligation of the Company to issue and sell any of the
Designated Shares and the obligation of any of the Underwriters to purchase any
of the Designated Shares shall be evidenced by the Pricing Agreement with
respect to the Designated Shares specified therein. Each Pricing Agreement
shall state the purchase price to the Underwriters of such Designated Shares,
the names of the Underwriters of such Designated Shares and the liquidation
preference of such Designated Shares to be purchased by each Underwriter, and
shall set forth the date, time and manner of delivery of such Designated Shares
and payment therefor. The Pricing Agreement shall also specify (to the extent
not set forth in the registration statement and the prospectus with respect
thereto) the terms of such Designated Shares. A Pricing Agreement shall be in
the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of facsimile transmissions. Each Pricing Agreement
shall be deemed to be an agreement by the Company and the Underwriters to be
bound by the terms of this Agreement. The obligations of the Underwriters
under this Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement (No. 33-_____) on Form S-3 in respect of the
Shares and the related depositary shares (the "Depositary Shares") issued
pursuant to the Deposit Agreement (the "Deposit Agreement") between the
Company and the depositary named or to be named therein (the "Depositary"),
has been filed with the Securities and Exchange Commission (the
"Commission"), in the form heretofore delivered to the Representative[s], and
such registration statement in such form has been declared effective by the
Commission; and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
<PAGE> 3
3
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement being hereinafter called
the "Preliminary Prospectus", the various parts of such registration
statement, including all exhibits thereto, and if applicable, including
information ("Rule 430A Information") deemed to be a part of such
registration statement at the time of effectiveness pursuant to Rule 430A
under the Securities Act of 1933, as amended (the "Act"), each as amended at
the time such part became effective, being hereinafter called the
"Registration Statement", and the prospectus relating to the Shares and the
Depositary Shares, in the form in which it has most recently been filed, or
mailed for filing, with the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus"; and any reference
herein to the Registration Statement, to the Preliminary Prospectus or to the
Prospectus shall be deemed to include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the effective
date of the Registration Statement or the date of such Preliminary Prospectus
or Prospectus, as the case may be, and any reference herein to any amendment
or supplement to the Registration Statement, the Preliminary Prospectus or
the Prospectus shall be deemed to include any documents filed after the
effective date of the Registration Statement or the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and so incorporated by
reference; and any reference to the phrase "Prospectus as amended or
supplemented" shall be deemed to refer to the Prospectus as amended or
supplemented to set forth any Rule 430A Information or to describe the
offering of a particular series of Designated Shares in the form in which it
is first filed, or mailed for filing, with the Commission pursuant to Rule
424 under the Act, including any documents incorporated by reference therein
as of the date of such filing or mailing);
(b) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and any further documents so filed and incorporated by
reference, when they are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to
the requirements of the Act, the Exchange Act, where applicable, and the
rules and regulations of the Commission under the Act or the Exchange Act, as
applicable, and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any supplement thereto,
contain any untrue statement of a material fact or omit to
<PAGE> 4
4
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statement or omission made
in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter of Designated Shares through the
Representative[s] expressly for use in the Prospectus as amended or
supplemented relating to such Designated Shares;
(d) The Company, Associates First Capital Corporation ("Associates"),
Associates Corporation of North America ("ACONA"), The American Road
Insurance Company ("American Road"), USL Capital Corporation ("USL Capital"),
Ford Motor Land Development Corporation ("Ford Land") and Ford Leasing
Development Company ("Ford Leasing", together with Associates, ACONA,
American Road, USL Capital and Ford Land, the "Holdings Subsidiaries" and
each, individually, a "Holdings Subsidiary") have each been duly
incorporated, and each is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, and has corporate
power and authority, and has all licenses, permits, orders and other
governmental and regulatory approvals, to own or lease its properties and
conduct its business in the jurisdictions in which such business is
transacted, with only such exceptions as are not material to the business of
the Company and its subsidiaries considered as a whole; all of the
outstanding shares of capital stock of the Holdings Subsidiaries have been
duly authorized and validly issued and are fully paid and non-assessable, and
all of such shares are owned by the Company, directly or indirectly, free and
clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; and none of such shares was issued in violation of
the preemptive rights of any shareholder;
(e) The Company has an authorized capital stock as set forth in the
Prospectus as amended or supplemented and all of the issued and outstanding
capital stock (other than the Designated Preferred Shares) of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; all the outstanding common stock of the Company, representing
75% of the combined voting power of all classes of capital stock of the
Company, is owned of record and beneficially, directly or indirectly, by Ford
Motor Company, a Delaware corporation ("Ford"), free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind;
(f) As of a Time of Delivery, such of the Collateral Agreements (as
defined below) as are applicable to the issue and sale of the Designated
Shares will have been duly authorized, executed and delivered by the Company
and will constitute valid and legally binding agreements of the Company
enforceable in accordance with their terms; and such Collateral Agreements
will conform to the descriptions thereof contained in the Registration
Statement and the Prospectus as amended or
<PAGE> 5
5
supplemented; as used herein, the term "Collateral Agreements" shall mean the
Trust Company Agreement between the Company and the trust company named
therein (the "Trust Company"), each Term Selection Agent Agreement between the
Company and the Term Selection Agent named therein, each Auction Agent
Agreement between the Company and the Auction Agent named therein, each
Remarketing Agreement between the Company and the Remarketing Agent named
therein, each Method Selection Agreement between the Company and the Method
Selection Agent named therein, the Auction Stock Depository Agreement among
the Company, the Depository Trust Company and the Trust Company, the
Remarketed Stock Depositary Agreement between the Company and the depository
named therein, and the Deposit Agreement;
(g) This Agreement has been duly authorized, executed and delivered by the
Company and is a valid and legally binding agreement of the Company in
accordance with its terms; upon execution and delivery of each Pricing
Agreement by the Company, such Pricing Agreement shall have been duly
authorized, executed and delivered by the Company and, when executed and
delivered by the Representative[s], will be a valid and legally binding
agreement of the Company in accordance with its terms; on the date of each
Pricing Agreement with respect to any Designated Preferred Shares covered
thereby, such Designated Preferred Shares shall be duly authorized and, when
such Designated Preferred Shares are duly executed and delivered and issued
and paid for in accordance with this Agreement and the Pricing Agreement
applicable to such Designated Preferred Shares, will have been validly
issued, fully paid and non-assessable; no holder thereof will be subject to
personal liability by reason of being such a holder; such Designated
Preferred Shares will not be subject to the preemptive rights of any
stockholder of the Company; and all corporate action required to be taken for
the authorization, issue and sale of such Designated Preferred Shares has
been, or at a Time of Delivery will be, validly and sufficiently taken; and,
if such Designated Preferred Shares are to be represented by Designated
Depositary Shares, then, upon deposit by the Company of such Designated
Preferred Shares with the Depositary pursuant to the Deposit Agreement and
the execution by the Depositary of the depositary receipts evidencing the
Designated Depositary Shares, such Designated Depositary Shares shall
represent legal and valid interests in the Designated Preferred Shares;
(h) Except for such as will be obtained prior to a Time of Delivery, there
is no consent, approval, authorization, order, registration or qualification
of or with any court or any regulatory authority or other governmental body
having jurisdiction over the Company which is required for, and the absence
of which would materially affect, the valid authorization, issuance, sale and
delivery of the Designated Shares as contemplated by this Agreement and the
Pricing Agreement applicable to the Designated Shares or the valid execution
and delivery by the Company of this Agreement, such Pricing Agreement and
such of the Collateral Agreements as are applicable to the issue and sale of
the Designated Shares, except (i) the filing of a
<PAGE> 6
6
Certificate of Designations applicable to the Designated Shares with the
Secretary of State of the State of Delaware, (ii) the registration under the
Act of the Shares and the Depositary Shares, (iii) the registration of the
Designated Shares under the Exchange Act, (iv) the listing of the Designated
Preferred Shares or the Designated Depositary Shares, as the case may be, on
the New York Stock Exchange and (v) such consents, approvals, authorizations,
registrations or qualifications as may be required under the securities or
Blue Sky laws of any jurisdiction in connection with the public offering of
the Designated Shares by the Underwriters;
(i) The Designated Shares will conform to the descriptions thereof
contained in the Registration Statement and the Prospectus as amended or
supplemented and such descriptions will conform to the rights set forth in
the instruments defining the same;
(j) Neither the Company nor any Holdings Subsidiary is in violation of its
certificate of incorporation or by-laws and neither the Company nor any
Holdings Subsidiary is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it is bound or to which any of
its properties are subject, except for defaults that would not have a
material adverse effect upon the general affairs, financial position, net
worth or results of operations (on an annual basis) of the Company and its
subsidiaries considered as a whole. The execution and delivery by the
Company of this Agreement, the Pricing Agreement applicable to the Designated
Shares and such of the Collateral Agreements as are applicable to the issue
and sale of the Designated Shares, the issuance and delivery of the
Designated Shares, the consummation of the transactions contemplated herein
and in the Registration Statement and compliance by the Company with the
terms of this Agreement, the Pricing Agreement applicable to the Designated
Shares and such of the Collateral Agreements as are applicable to the issue
and sale of the Designated Shares, do not and will not result in any
violation of the certificate of incorporation or by-laws of Ford, Ford Motor
Credit Company ("Ford Credit"), the Company or any Holdings 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
Ford, Ford Credit, the Company or any Holdings Subsidiary under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other agreement
or instrument to which Ford, Ford Credit, the Company or any Holdings
Subsidiary is a party or by which it is bound or to which any of their
properties are subject, (B) any existing applicable law, rule, regulation or
(C) any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over Ford,
Ford Credit, the Company or any Holdings Subsidiary or any of their
properties, in each case, except
<PAGE> 7
7
for conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a material adverse effect upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of the
Company and its subsidiaries considered as a whole or the Company's issue,
sale and compliance with the terms of the Designated Shares;
(k) Except as disclosed in the Registration Statement or the Prospectus as
amended or supplemented, 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 Ford,
Ford Credit, the Company or any Holdings Subsidiary that would result in any
material adverse change upon the general affairs, financial position, net
worth or results of operations (on an annual basis) of the Company and its
subsidiaries considered as a whole or the Company's issue, sale and
compliance with the terms of the Designated Shares;
(l) Dividends paid by the Company on the Designated Preferred Shares will,
and any such dividends distributed to holders of the Designated Depositary
Shares will, for Federal income tax purposes, be distributions made by a
corporation to a shareholder with respect to its stock within the meaning of
Section 301(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
and, to the extent such distributions are paid out of earnings and profits,
such distributions will constitute "dividends" within the meaning of Section
316(a) of the Code and a corporate shareholder will be entitled to the
dividends received deduction under Section 243(a)(1) of the Code as presently
in effect; provided that such corporate shareholder satisfies the minimum
holding period requirement and any other requirement that a corporate
shareholder must satisfy in order to claim the dividends received deduction;
and provided that neither the Designated Preferred Shares nor the Designated
Depositary Shares are "debt financed portfolio stock" within the meaning of
Section 246A of the Code;
(m) Neither the Company nor any Holdings Subsidiary, nor any person who
controls or is controlled, directly or indirectly, by the Company or any
Holdings Subsidiary, is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended; and
(n) Coopers & Lybrand L.L.P., who have certified certain of the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus as amended or
supplemented, are, to the best of the knowledge of the Company, independent
certified public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
<PAGE> 8
8
3. (a) Subject to the terms and conditions herein set forth (except
otherwise specified in Schedule II to the applicable Pricing Agreement), (i)
the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the purchase prices per Designated Share set forth in Schedule II
to such Pricing Agreement, the number of Designated Firm Shares set forth
opposite the name of such Underwriter therein and (ii) in the event and to the
extent that the Underwriters shall exercise the election to purchase Designated
Option Shares as provided in paragraph (b) below, the Company agrees to issue
and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase prices
per Designated Share set forth in Schedule II to such Pricing Agreement, that
portion of the number of Designated Option Shares as to which such election
shall have been exercised (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying such number of Designated Option Shares by a
fraction the numerator of which is the maximum number of Designated Option
Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule II to such Pricing Agreement and the
denominator of which is the maximum number of the Designated Option Shares
which all of the Underwriters are entitled to purchase thereunder.
(b) The Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Shares that the Underwriters are granted the right
to purchase at their election the number of Designated Option Shares specified
therein for the sole purpose of covering overallotments in the sale of the
Designated Firm Shares. Any such election to purchase Designated Option Shares
may be exercised only by written notice from the Representative[s] to the
Company, given within a period of 30 calendar days after the date of the
Pricing Agreement applicable to the Designated Shares, setting forth the
aggregate number of Designated Option Shares to be purchased and the date on
which such Designated Option Shares are to be delivered, as determined by the
Representative[s] but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representative[s] and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
(c) Within 48 hours after the delivery of the Pricing Agreement applicable
to the Designated Shares, each Underwriter shall furnish to [Lead Manager]
("Lead Manager") a statement from such Underwriter setting forth, to the best
of such Underwriter's knowledge as of the latest practicable time (which time
shall be specified in such statement and shall not be earlier than the delivery
of the Pricing Agreement applicable to the Designated Shares), the number of
Designated Shares sold by such Underwriter to institutional purchasers and the
number of Designated Shares sold by such Underwriter to all other purchasers.
On the basis of such statements, [Lead Manager] shall calculate the percentage
of all Designated Shares sold to institutional purchasers, and the percentage
of all Designated Shares sold to all other purchasers, to be applied at each
Time of Delivery for the purpose of calculating the
<PAGE> 9
9
aggregate purchase price for Designated Shares sold at each Time of Delivery.
For the purposes hereof, any Designated Shares allotted to an Underwriter that
have not been sold as of the time set forth in such statement shall be deemed
to be Designated Shares sold to all other purchasers. At least 48 hours prior
to the First Time of Delivery, [Lead Manager] shall provide the Company with
the aforesaid calculation and copies of such statements.
(d) Within 60 days of the last Time of Delivery the Company may, by written
notice, request any Underwriter to provide, and each Underwriter receiving such
notice within 60 days of such notice shall provide, the Company with a letter
from such Underwriter's independent auditors confirming the contents of the
statement furnished by such Underwriter to the Company through [Lead Manager]
pursuant to paragraph (e) above or, if such auditor cannot confirm such
statement, specifying the number of Designated Shares sold by such Underwriter
to institutional purchasers as of the time specified in such statement. To the
extent that such auditor's letter indicates that the number of Designated
Shares sold to institutional purchasers exceeds the number set forth in such
Underwriter's statement furnished pursuant to paragraph (e) above, such
Underwriter shall promptly pay to the Company with respect to such excess
shares the difference between the purchase price per share for Designated
Shares sold to institutional purchasers and the purchase price per share for
Designated Shares sold to all other purchasers. The Company shall promptly pay
each Underwriter's reasonable costs of complying with any such request
(including the fees and expenses of such Underwriter's independent auditors).
(e) Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representative[s] of the release of
the Designated Firm Shares and, if applicable, the Designated Option Shares,
the several Underwriters propose to offer the Designated Firm Shares and, if
applicable, the Designated Option Shares for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented, and, in connection with
such offer or the sale of such Designated Firm Shares or Designated Option
Shares, will use the Prospectus as amended or supplemented, together with any
amendment or supplement thereto, that specifically describes such Designated
Shares, in the form which has been most recently distributed to them by the
Company, only as permitted or contemplated thereby, and will offer and sell
such Designated Firm Shares or Designated Option Shares only as permitted by
the Act and the applicable securities laws or regulations of any jurisdiction.
The Representative[s] will use their best efforts to inform the Company when
they have authorized the sale of the Designated Firm Shares or Designated
Option Shares to the public and when they have been advised that such
Designated Firm Shares or Designated Option Shares have been sold by the
several Underwriters within a reasonable period of time after such sales are
completed.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto shall be
delivered by or on behalf of the Company to the Representative[s] for the
account of such Underwriter, against payment of
<PAGE> 10
10
the purchase price therefor by such Underwriter or on its behalf, by certified
or bank check or checks, payable to the order of the Company, or by wire or
internal bank transfer to an account specified by the Company, in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representative[s] and the Company may agree upon in writing. The time and
date of such delivery and payment with respect to the Designated Option Shares
shall be specified by the Representative[s] in the written notice given by the
Representative[s] of the Underwriters' election to purchase such Designated
Option Shares, or at such other time and date as the Representative[s] and the
Company may agree upon in writing. Such time and date for delivery of the
Designated Firm Shares are herein called the "First Time of Delivery", such
time and date for delivery of the Designated Option Shares, if not the First
Time of Delivery, are herein called the "Second Time of Delivery", and each
such time and date for delivery are herein called a "Time of Delivery". The
Designated Shares so delivered shall be registered in such name or names as the
Representative[s] shall request in writing at least 48 hours prior to the Time
of Delivery. For the purpose of expediting the checking of such Designated
Shares by the Representative[s], the Company agrees to make such Designated
Shares available to the Representative[s] not later than 9:00 a.m., New York
City time, on the business day next preceding each Time of Delivery at the
offices of the Representative[s] designated in Section 11 hereof.
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To make no amendment or any supplement to the Registration Statement
or the Prospectus as amended or supplemented after the date of the Pricing
Agreement relating to such Designated Shares and prior to the last Time of
Delivery for such Designated Shares prior to having furnished the
Representative[s] with a copy of the proposed form thereof and given the
Representative[s] a reasonable opportunity to review the same; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus as amended or supplemented and for so long as the delivery of a
prospectus is required by law in connection with the offering or sale of such
Designated Shares, and during such same period to advise the
Representative[s], promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or become
effective or any supplement to the Prospectus as amended or supplemented or
any amended Prospectus has been filed or mailed for filing, of the issuance
of any stop order by the Commission, of the suspension of the qualification
of such Designated Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus as amended or supplemented or for
<PAGE> 11
11
additional information; and, in the event of the issuance of any such stop
order or of any order preventing or suspending the use of any prospectus
relating to such Designated Shares or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representative[s] may reasonably request in order to qualify such
Designated Shares for offering and sale under the securities laws of such
jurisdictions as the Representative[s] may request and to continue such
qualifications in effect so long as necessary under such laws for the
distribution of such Designated Shares, provided that, in connection
therewith, the Company shall not be required to qualify as a foreign
corporation to do business, or to file a general consent to service of
process in any jurisdiction, and provided, further, that the expense of
maintaining any such qualification more than one year from the date of the
Pricing Agreement with respect to such Designated Shares shall be at the
expense of the Underwriters;
(c) To furnish the Underwriters with copies of the Registration Statement
(excluding exhibits) and copies of the Prospectus as amended or supplemented
in such quantities as the Representative[s] may from time to time reasonably
request; and if, before a period of six months shall have elapsed after the
date of the Pricing Agreement applicable to such Designated Shares and the
delivery of a prospectus shall be at the time required by law in connection
with sales of any such Designated Shares, either (i) any event shall have
occurred as a result of which the Prospectus as amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (ii) for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus as amended or supplemented or to file under the
Exchange Act any document incorporated by reference into the Prospectus as
amended or supplemented in order to comply with the Act or the Exchange Act,
to notify the Representative[s] and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer participating in the distribution of such Designated Shares as many
copies as the Representative[s] may from time to time reasonably request of
an amendment or a supplement to the Prospectus as amended or supplemented
which will correct such statement or omission or effect such compliance; and
in case any Underwriter is required by law to deliver a prospectus in
connection with sales of any of such Designated Shares at any time six months
or more after the date of such Pricing Agreement, upon the request of the
Representative[s], but at the expense of such Underwriter, to prepare and
deliver to such Underwriter as many copies as the Representative[s] may
request of an amended or supplemented prospectus complying with Section
10(a)(3) of the Act;
<PAGE> 12
12
(d) To make generally available to security holders of the Company as soon
as practicable, but in any event no later than eighteen months after the
effective date of each Registration Statement (as such date is defined in
Rule 158(c) under the Act), an earnings statement of the Company and its
consolidated subsidiaries complying with Rule 158 under the Act and covering
a period of at least twelve consecutive months beginning after such effective
date;
(e) During a period of five years from the date of the Pricing Agreement
applicable to such Designated Shares, to furnish to the Representative[s]
copies of all reports or other communications (financial or other) furnished
by the Company to security holders, and to deliver to the Representative[s],
at [its] [their] request during such same period, (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any of
the Shares or any class of securities of the Company is listed, and (ii) such
additional information concerning the business and financial condition of the
Company as the Representative[s] may from time to time reasonably request
(such financial statements to be on a consolidated basis to the extent that
the accounts of the Company and its subsidiaries are consolidated in reports
furnished to its security holders generally or to the Commission);
[(f) For a period of 90 days from the date of the Pricing Agreement
applicable to any Designated Shares, not to offer for sale, sell or otherwise
dispose of, directly or indirectly, any shares of preferred stock of the
Company or depositary shares representing the same or sell or grant options,
rights or warrants with respect to any shares of preferred stock, without the
prior written consent of the Representative[s], other than (i) the Designated
Shares or (ii) shares of preferred stock of the Company or depositary shares
representing the same offered pursuant to any dividend reinvestment program;
(g) To use its best efforts to list, subject to notice of issuance, the
Designated Shares on the New York Stock Exchange;] and
[(h)] To pay or cause to be paid all costs and expenses incident to the
performance of its obligations hereunder, including the following: (i) all
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
producing this Agreement, each Pricing Agreement, each Collateral Agreement
as is applicable to the issue and sale of the Designated Shares, the
Certificate of Designations, the Blue Sky Memorandum and any legal investment
survey; (iii) all expenses in connection with the qualification of the
Designated Shares for offering and sale under state securities laws as
provided in Section 5(b) hereof,
<PAGE> 13
13
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
Memorandum and any legal investment survey; (iv) the cost of preparing stock
certificates and depositary receipts; (v) the cost and charges of any
Depositary and any transfer agent or registrar; and (vi) all other costs and
expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this subsection [(h)] and in Sections 8
and 10 hereof, the Underwriters will pay all of their own costs and expenses,
including, without limitation, costs of printing any Agreement among
Underwriters and fees of their counsel, stock transfer taxes on resale of any
of such Designated Shares by them and any advertising expenses connected with
any offers that they may make.
6. The obligations of the Underwriters of any Designated Shares under the
Pricing Agreement applicable to such Designated Shares shall be subject, in the
discretion of the Representative[s], to the condition that all representations
and warranties and other statements of the Company herein are, at and as of
each Time of Delivery for such Designated Shares, true and correct, the
condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, in all material respects, and the
following additional conditions:
(a) The Prospectus as amended or supplemented shall have been timely filed
with the Commission in accordance with Section 5(a); no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with or otherwise satisfied;
(b) The resolutions contained in the certificate of designations relating
to the Designated Preferred Shares shall have been duly adopted by the board
of directors of the Company and the certificate of designations shall have
been duly filed with the Secretary of State of the State of Delaware in
compliance with the applicable provisions of the Delaware General Corporation
Law; and such of the Collateral Agreements as are applicable to the issue and
sale of the Designated Shares shall have been executed and delivered by the
respective parties thereto;
(c) J.M. Rintamaki, Esq., Secretary of the Company, or other counsel
satisfactory to the Representative[s] in [its] [their] reasonable judgment,
shall have furnished to the Representative[s] his written opinion, dated each
Time of Delivery for such Designated Shares, in form satisfactory to the
Representative[s] in [its] [their] reasonable judgment, to the effect that:
<PAGE> 14
14
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
corporate power under the laws of such State to own its properties and
conduct its business as described in the Prospectus as amended or
supplemented;
(ii) 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 upon the general affairs, financial position, net worth or
results of operations (on an annual basis) of the Company and its
subsidiaries considered as a whole;
(iii) The Company has an authorized capital stock as set forth in the
Prospectus as amended or supplemented; all the issued and outstanding shares
of capital stock (other than the Designated Preferred Shares) of the Company
have been duly authorized and validly issued and are fully-paid and
non-assessable; all the outstanding common stock of the Company,
representing 75% of the combined voting power of all classes of capital
stock of the Company, is owned of record and beneficially, directly or
indirectly, by Ford free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind;
(iv) Each of the Holdings Subsidiaries has been duly incorporated and
each is validly existing as a corporation in good standing under the laws of
the State of Michigan, in the case of American Road and the State of
Delaware, in the case of Associates, ACONA, USL Capital, Ford Land and Ford
Leasing, with corporate power under the laws of the state of its
incorporation to own its properties and conduct its business as described in
the Prospectus as amended or supplemented;
(v) Each of the Holdings Subsidiaries 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 upon the general affairs, financial position,
net worth or results of operations (on an annual basis) of the Company and
its subsidiaries considered as a whole;
(vi) All of the outstanding shares of capital stock of the Holdings
Subsidiaries have been duly authorized and validly issued and are fully paid
<PAGE> 15
15
and non-assessable; all of such shares are owned by the Company, directly or
indirectly, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind; and none of such shares was issued
in violation of the preemptive rights of any stockholder; in each of the
aforementioned cases, with only such exceptions as are not material to the
business of the Company and its subsidiaries considered as a whole;
(vii) The Designated Shares and such of the Collateral Agreements as are
applicable to the issue and sale of the Designated Shares conform as to
legal matters in all material respects to the descriptions thereof contained
in the Registration Statement and the Prospectus as amended or supplemented;
(viii) The Company has corporate power and authority to execute and
deliver this Agreement, the Pricing Agreement applicable to the Designated
Shares and such of the Collateral Agreements as are applicable to the issue
and sale of the Designated Shares; this Agreement and the Pricing Agreement
applicable to the Designated Shares each have been duly authorized, executed
and delivered by the Company; and such of the Collateral Agreements as are
applicable to the issue and sale of the Designated Shares have been duly
authorized, executed and delivered by the Company and constitute valid and
legally binding agreements of the Company enforceable in accordance with
their terms;
(ix) The Designated Preferred Shares have been duly authorized,
executed and delivered and have been validly issued and are fully paid and
non-assessable and no holder thereof will be subject to personal liability
by reason of being such a holder; such Designated Preferred Shares will not
be subject to the preemptive rights of any stockholder of the Company and
all corporate action required to be taken for the authorization, issue and
sale of such Designated Preferred Shares have been validly and sufficiently
taken; and, if such Designated Preferred Shares are represented by
Designated Depositary Shares (the Company having deposited such Designated
Preferred Shares with the Depositary pursuant to the Deposit Agreement)
then, assuming the due execution by the Depositary and/or any registrar, as
the case may be, of the depositary receipts evidencing the Designated
Depositary Shares in accordance with the terms of the Deposit Agreement, the
Designated Depositary Shares represent legal and valid interests in the
Designated Preferred Shares;
(x) The execution and delivery of this Agreement and the Pricing
Agreement applicable to the Designated Shares, the issuance and delivery of
the Designated Shares, the consummation by the Company of the transactions
contemplated in this Agreement, such Pricing Agreement and in the Prospectus
<PAGE> 16
16
as amended or supplemented and compliance by the Company with the terms of
this Agreement and such Pricing Agreement do not and will not result in any
violation of the certificate of incorporation or by-laws of Ford, Ford
Credit, the Company or any Holdings 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 Ford, Ford Credit,
the Company or any Holdings Subsidiary under (A) any contract, indenture,
mortgage or loan agreement, or any other agreement or instrument known to
such counsel, to which Ford, Ford Credit, the Company or any Holdings
Subsidiary is a party or by which they are bound or to which any of their
properties are subject, (B) any existing applicable law, rule or regulation
(other than the securities or blue sky laws of the various states, as to
which such counsel need express no opinion), or (C) any judgment, order or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over Ford, Ford Credit, the Company or any
Holdings Subsidiary or any of their properties, in each case, except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would
not have a material adverse effect upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of the
Company and its subsidiaries considered as a whole or the Company's issue,
sale and compliance with the terms of the Designated Shares;
(xi) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and other
accounting information contained or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no opinion), when
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder;
(xii) The Registration Statement has become effective under the Act and,
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission; the Registration Statement and the Prospectus as amended or
supplemented (other than Exhibit 12 to the Registration Statement and the
financial statements and other accounting information contained in the
Registration Statement or the Prospectus as amended or supplemented, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder;
<PAGE> 17
17
(xiii) Such counsel believes that the Registration Statement (other than
Exhibit 12 thereto and the financial statements and other accounting
information contained therein or omitted therefrom, as to which such counsel
need express no opinion) and any amendment thereto, at the time the same
became effective, did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(xiv) Such counsel believes that on the date of the Prospectus as
amended or supplemented, the Prospectus as amended or supplemented (other
than the financial statements and other accounting information contained
therein or omitted therefrom, as to which such counsel need express no
opinion), did not and does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(xv) Such counsel does not know of any contract or other document of a
character required to be filed as an exhibit to the Registration Statement
or required to be incorporated by reference into the Prospectus as amended
or supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which is not filed or incorporated
by reference or described as required;
(xvi) Such counsel does not know of any legal or governmental proceeding
pending to which the Company or any of the Holdings Subsidiaries is a party
or of which any property of the Company or any of the Holdings Subsidiaries
is the subject, and no such proceedings are known by such counsel to be
threatened or contemplated by governmental authorities or threatened by
others, other than as set forth or contemplated in the Prospectus as amended
or supplemented and other than such proceedings which, in his opinion, will
not have a material adverse effect upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of the
Company and its subsidiaries considered as a whole or the Company's issue,
sale and compliance with the terms of the Designated Shares; and
(xvii) Neither the Company nor any of the Holdings Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
Such opinion may be made subject to the qualification that the enforceability
of the terms of such of the Collateral Agreements as are applicable to the
issue and sale of
<PAGE> 18
18
the Designated Shares may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the enforcement
of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law; such counsel may rely, as to matters of Delaware law, on
the opinion of Morris, Nichols, Arsht and Tunnell or such other counsel
satisfactory to the Representative[s] in [its] [their] reasonable judgment;
(d) Shearman & Sterling, counsel to the Underwriters, shall have furnished
to the Representative[s] their written opinion, dated each Time of Delivery
for such Designated Shares, in form satisfactory to the Representative[s] in
[its] [their] reasonable judgment, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware and has
the corporate power under the laws of such State to own its properties and
carry on its business as set forth in the Prospectus as amended or
supplemented;
(ii) The Designated Preferred Shares have been duly authorized by the
Company and, when executed by the Company and delivered and paid for as
provided in this Agreement and the applicable Pricing Agreement, will have
been validly issued and will be fully paid and non-assessable, and no
holder thereof will be subject to personal liability by reason of being such
a holder; such Designated Preferred Shares will not be subject to the
preemptive rights of any stockholder of the Company, and all corporate
action required to be taken for the authorization, issue and sale of such
Designated Preferred Shares has been validly and sufficiently taken; and, if
such Designated Preferred Shares are represented by Designated Depositary
Shares, then, when such Designated Preferred Shares are deposited with the
Depositary by the Company pursuant to the Deposit Agreement and the
depositary receipts evidencing the Designated Depositary Shares are executed
by the Depositary, the Designated Depositary Shares shall represent valid
and legally binding interests in the Designated Preferred Shares;
(iii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and other
accounting information contained or incorporated by reference therein or
omitted therefrom, as to which such counsel need express no opinion), when
they were filed with the Commission, appeared on their face to be
appropriately responsive in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder;
<PAGE> 19
19
(iv) The Registration Statement has become effective under the Act, is
still effective, and to the best knowledge of such counsel no proceedings
for a stop order are pending or threatened;
(v) The Registration Statement and the Prospectus as amended or
supplemented (other than Exhibit 12 to the Registration Statement and the
financial statements and other accounting information contained in the
Registration Statement or the Prospectus as amended or supplemented, as to
which such counsel need express no opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder;
(vi) The Designated Shares and such of the Collateral Agreements as are
applicable to the issue and sale of the Designated Shares conform as to
legal matters with the descriptions thereof contained in the Prospectus as
amended or supplemented; and
(vii) This Agreement and the Pricing Agreement with respect to the
Designated Shares have been duly authorized, executed and delivered by the
Company; such of the Collateral Agreements as are applicable to the issue
and sale of the Designated Shares have been duly authorized, executed and
delivered by the Company and constitute valid and legally binding agreements
of the Company enforceable in accordance with their terms.
Such opinion shall also state that, while such counsel have not verified,
and are not passing upon and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, they have generally reviewed and
discussed such statements with the certain officers and employees of the
Company, Ford and the Holdings Subsidiaries, with their counsel and auditors
and with the representatives of the Underwriters, and in the course of such
review and discussions, no facts came to the attention of such counsel which
lead them to believe that either the Registration Statement, at the time that
such Registration Statement [originally] became effective [and on ________,
19__ at the time at which the Company filed its Annual Report on Form 10-K
dated December 31, 199_] (other than the financial statements and other
accounting information contained therein, or omitted therefrom, as to which
they have not been requested to comment), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus, as of the date thereof (other than the financial statements
and other accounting information contained therein, or omitted therefrom, as
to which they have not been requested to comment), included an untrue
statement of a material fact or omitted to state a material fact necessary in
order to
<PAGE> 20
20
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
Such opinion may be made subject to the qualification that the
enforceability of the terms of such of the Collateral Agreements as are
applicable to the issue and sale of the Designated Shares may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is considered
in a proceeding in equity or at law; such counsel may rely, as to matters of
Delaware law, on the opinion of Morris, Nichols, Arsht and Tunnell or such
other counsel satisfactory to the Representative[s] in [its] [their]
reasonable judgment;
(e) In the event that the Designated Preferred Shares are auction rate
preferred stock and/or remarketed preferred stock (or an equivalent preferred
stock), Morris, Nichols, Arsht and Tunnell, special Delaware counsel to the
Company, or other counsel satisfactory to the Representative[s] in [its]
[their] reasonable judgment, shall have furnished to the Underwriters their
written opinion, dated each Time of Delivery, in form satisfactory to the
Underwriters in their reasonable judgment, to the effect that:
(i) When issued in accordance with the terms of the Company's
certificate of incorporation (as supplemented by the certificate of
designation relating to the Designated Preferred Shares) and delivered and
paid for in accordance with the terms of this Agreement, the Designated
Preferred Shares will be validly issued, fully paid and non-assessable and
will not have been issued in violation of or subject to any preemptive
rights; and
(ii) The relative rights, preferences and powers of the Designated
Preferred Shares are as set forth in the Company's certificate of
incorporation (as supplemented by the certificate of designation relating to
the Designated Preferred Shares), and all such rights, preferences and
powers are valid under the laws of the State of Delaware.
Such opinion shall also state that, in giving their opinions pursuant to
subsections (c) and (d) hereof, J.M. Rintamaki and Shearman & Sterling may
rely on such opinion, with respect to matters of Delaware law;
(f) If any matters relating to the tax treatment of the Designated Shares
are set forth in the Registration Statement or the Prospectus as amended or
supplemented, Burton B. Smoliar, Associate General Counsel of Ford and tax
counsel for the Company, or other counsel satisfactory to the
Representative[s] in [its] [their]
<PAGE> 21
21
reasonable judgment, shall have furnished to the Representative[s] his
written opinion, dated each Time of Delivery, in form satisfactory to the
Representative[s] in [its] [their] reasonable judgment, as to such matters;
(g) (i) At the time of execution of the Pricing Agreement for such
Designated Shares, Coopers & Lybrand L.L.P. shall have furnished to the
Representative[s] a letter dated the date of such Pricing Agreement and (ii)
at each Time of Delivery for such Designated Shares, Coopers & Lybrand L.L.P.
shall have furnished to the Representative[s] a letter dated such Time of
Delivery, in each case in form satisfactory to the Representative[s], in
[its] [their] reasonable judgment, to the effect set forth in Annex II hereto
and, with respect to such letter dated such Time of Delivery, as to such
other matters as the Representative[s] may reasonably request as shall be
referred to in Schedule II to the Pricing Agreement applicable to such
Designated Shares;
(h) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of the
Company and its subsidiaries considered as a whole, or any material adverse
change in the financial position or results of operations of the Company and
its subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, which in any such
case makes it impracticable or inadvisable in the reasonable judgment of the
Representative[s] to proceed with the public offering or the delivery of the
Designated Shares on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(i) Since the time of execution of the Pricing Agreement applicable to the
Designated Shares, [(i)] the United States shall not have become engaged in
hostilities which have resulted in the declaration of a national emergency or
a declaration of war[, or (ii) there shall not have occurred a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange] which[, in either case,] makes it impracticable or inadvisable in
the reasonable judgment of the Representative[s] to proceed with the public
offering or the delivery of the Designated Shares being delivered at such
Time of Delivery on the terms and in the manner contemplated in the
Prospectus as amended or supplemented; [and]
[(j) The Designated Shares to be sold by the Company at such Time of
Delivery shall have been duly listed, subject to notice of issuance, on the
New York Stock Exchange; and]
<PAGE> 22
22
[(k)] The Company shall have furnished or caused to be furnished to the
Representative[s], at each Time of Delivery for such Designated Shares, a
certificate of the President or any Vice President or any Assistant Treasurer
of the Company in form satisfactory to the Representative[s] in [its] [their]
reasonable judgment to the effect that: (i) the representations and
warranties of the Company contained in this Agreement are true and correct on
and as of such Time of Delivery as though made at and as of such Time of
Delivery; (ii) the Company has duly performed, in all material respects, all
obligations required to be performed by it pursuant to the terms of this
Agreement at or prior to such Time of Delivery; (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or, to the knowledge of
the Company threatened by the Commission and all requests for additional
information on the part of the Commission have been complied with or
otherwise satisfied; and (iv) at and as of such Time of Delivery the
Registration Statement and the Prospectus as amended or supplemented do not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that no such certificate shall
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
expressly for use therein.
7. (a) The Company will indemnify and hold harmless each Underwriter of
the applicable Designated Shares against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject
with respect to such Designated Shares, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, either the Registration Statement or the Prospectus as
amended or supplemented, or any amendment or supplement thereto with respect to
such Designated Shares, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
of Designated Shares through the Representative[s] expressly for use therein;
and provided further that the Company shall not be liable to any Underwriter of
Designated Shares or any person controlling such Underwriter under the
indemnity agreement in this subsection (a) with respect to any of such
documents to the extent that any such loss, claim, damage or liability of such
Underwriter or controlling person results from the fact that such Underwriter
sold such Designated Shares to a person to
<PAGE> 23
23
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference), whichever is most
recent, if the Company has previously furnished copies thereof to such
Underwriter.
The indemnity agreement in this subsection (a) shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act.
(b) Each Underwriter of the applicable Designated Shares will indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject with respect to such Designated Shares,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement or the Prospectus as amended or supplemented, or any
amendment or supplement thereto with respect to such Designated Shares, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter through the Representative[s] expressly for use therein; and will
reimburse the Company for any legal fees or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim.
The indemnity agreement in this subsection (b) shall be in addition to any
liability which the Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of written notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying party
shall have no further liability under such subsection to such indemnified party
unless such indemnifying party shall have received other notice addressed and
delivered in the manner provided in the second paragraph of Section 11 hereof
of the commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability
<PAGE> 24
24
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any indemnified
party, and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate therein, and, to the
extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party in its reasonable judgment, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under subsection (a) or (b) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters of the Designated Shares on the other from the
offering of the Designated Shares to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Designated Shares on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth in the table on the cover page of the Prospectus as amended
or supplemented with respect to such Designated Shares. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or such Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, including, with respect to any such Underwriter, the
extent to which such losses, claims, damages or liabilities (or actions in
respect thereof) result from the fact that such Underwriter sold such
Designated Shares to a person to whom there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented (excluding documents incorporated by
reference), which ever is most recent, if the Company has previously furnished
copies thereof to such Underwriter. The Company
<PAGE> 25
25
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) 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 subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of Underwriters of Designated
Shares in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
8. If any Underwriter shall default in its obligation to purchase the
Designated Shares which it has agreed to purchase under the Pricing Agreement
applicable to such Designated Shares, the Representative[s] may in [its]
[their] discretion arrange for themselves or for another party or other parties
to purchase such Designated Shares on the terms contained herein. If within 36
hours after such default by any Underwriter the Representative[s] do[es] not
arrange for the purchase of such Designated Shares, then the Company shall be
entitled to a further period of 36 hours within which to procure another party
or other parties to purchase such Designated Shares on such terms. In the
event that, within the respective prescribed periods, the Representative[s]
notif[y][ies] the Company that [it] [they] have so arranged for the purchase of
such Designated Shares, or the Company notifies the Representative[s] that it
has so arranged for the purchase of such Designated Shares, the
Representative[s] or the Company, respectively, shall have the right to
postpone the Time of Delivery for such Designated Shares for a period of not
more than seven days in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement or the Prospectus as
amended or supplemented which in the opinion of Shearman & Sterling and counsel
for the Company referred to in Section 6(c) hereof may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if it had originally
been a party to this Agreement with respect to such Designated Shares. In the
event that neither the Representative[s] nor the Company arranges for another
party or parties to purchase such Designated Shares as provided in this
Section, the Company shall have the right to require each non-defaulting
Underwriter to purchase and pay for the Designated Shares which such
<PAGE> 26
26
non-defaulting Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Shares and, in addition, to require each
non-defaulting Underwriter to purchase the Designated Shares which the
defaulting Underwriter or Underwriters shall have so failed to purchase up to
an amount thereof equal to 10% of the number of the Designated Shares which
such non-defaulting Underwriter has otherwise agreed to purchase under the
Pricing Agreement relating to such Designated Shares; provided, however, that
if the aggregate number of Designated Shares which any defaulting Underwriter
or Underwriters shall have so failed to purchase is more than one-eleventh of
the aggregate number of the Designated Shares, then the Pricing Agreement
relating to such Designated Shares may be terminated either by the Company or,
through the Representative[s], by such Underwriters as have agreed to purchase
in the aggregate 50% or more of the remaining Designated Shares under the
Pricing Agreement relating to such Designated Shares, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
referred to in Section 5[(h)] hereof and the indemnification provided in
Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
9. The respective indemnities, agreements, representations, warranties and
other statements of the Underwriters and the Company hereunder, as set forth in
this Agreement or made by them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
the Company or any officers or directors or any controlling person, and shall
survive delivery of and payment for the Designated Shares.
10. If any Pricing Agreement shall be terminated pursuant to Section 8
hereof, or if any Designated Shares are not delivered by the Company as
provided herein because the condition set forth in Section 6(i) has not been
met, the Company shall then be under no liability hereunder to any Underwriter,
except as provided in Section 5[(h)] and Section 7 hereof; but if for any other
reason any Designated Shares are not delivered by the Company as provided
herein, the Company will be liable to reimburse the Underwriters, through the
Representative[s], for all out-of- pocket expenses, including counsel fees and
disbursements, as approved in writing by the Representative[s], reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Designated Shares, but the Company shall then have no further
liability to any Underwriter except as provided in Section 5[(h)] and Section 7
hereof.
11. In all dealings with the Company under this Agreement and each Pricing
Agreement, the Representative[s] of the Underwriters of Designated Shares shall
act on behalf of each of such Underwriters, and the Company shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by the Representative[s].
<PAGE> 27
27
All statements, requests, notices and agreements hereunder shall be in
writing, or by telegram if promptly confirmed in writing, and if to the
Representative[s] or the Underwriters shall be sufficient in all respects if
delivered or sent by registered mail to the Representative[s] at [address of
Representative[s]], and if to the Company shall be sufficient in all respects
if delivered or sent by registered mail to the Company at The American Road,
Dearborn, Michigan 48121, attention of the Vice President-Treasurer and the
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 7(c) hereof shall be delivered or sent by registered mail directly to
such Underwriter at its principal office.
12. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters and the Company and to the
extent provided in Section 7 and Section 9 hereof, the officers and directors
of the Company and any person who controls any Underwriter or the Company, and
their respective personal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement or
any such Pricing Agreement. No purchaser of any of the Designated Shares from
any Underwriter shall be construed a successor or assign by reason merely of
such purchase.
13. Time shall be of the essence of each Pricing Agreement.
14. This Agreement and each Pricing Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
15. This Agreement and each Pricing Agreement may be executed by each of
the parties hereto and thereto in any number of counterparts, and by each of
the parties hereto and thereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, and upon the acceptance hereof by you, this
letter and such acceptance hereof shall constitute a binding agreement.
Very truly yours,
FORD HOLDINGS, INC.
By:________________
<PAGE> 28
28
Accepted in New York, New York,
as of the date hereof:
[NAME OF REPRESENTATIVE[S]]
By:________________________
<PAGE> 29
ANNEX I
Pricing Agreement
[Name[s] of Representative[s]]
as Representative[s] of the
Several Underwriters named
in Schedule I hereto,
[Address of Representative[s]]
, 19
Ladies and Gentlemen:
Ford Holdings, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement dated __________, 199__ (the "Underwriting Agreement")
between the Company and ________________, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Designated
Shares specified in Schedule II hereto. Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety and
shall be deemed to be a part of this Pricing Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty set forth in Section 2 of the Underwriting
Agreement relating to the Prospectus shall be deemed to have been made as of
the date of the Underwriting Agreement and, with respect to the Prospectus as
amended or supplemented applicable to the Designated Shares covered by this
Pricing Agreement, shall be deemed to have been made as of the date of this
Pricing Agreement. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Shares, in the
form heretofore delivered to you, is now proposed to be filed, or, in the case
of a supplement, mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase prices to the Underwriters set
<PAGE> 30
Ann. I - 2
forth in Schedule II hereto, the number of Designated Shares set forth opposite
the name of such Underwriter in Schedule I hereto.
[If this Pricing Agreement relates to an offering of auction
rate preferred stock and/or remarketed preferred stock, then add an appropriate
provision regarding the obtaining of Purchaser's Letters.]
If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in the General Terms and Conditions of Underwriters'
Participation in Underwritten Public Offerings of Shares Managed by [name of
Representative[s]] the form of which you have delivered to us. You represent
that you are authorized on behalf of yourselves and each of the Underwriters to
enter into this Pricing Agreement.
Very truly yours
FORD HOLDINGS, INC.
By:_______________
Accepted as of the date hereof:
[NAME OF REPRESENTATIVE[S]]
By:______________________
<PAGE> 31
SCHEDULE I TO PRICING AGREEMENT
<TABLE>
<CAPTION>
Number
of Designated
[Preferred] [Depositary]
Shares to
Underwriters be Purchased
------------ ------------------------
<S> <C>
[Name[s] of Representative[s] ..........
[Names of Other Underwriters] ..........
------------------------
Total .............................
========================
</TABLE>
<PAGE> 32
SCHEDULE II TO PRICING AGREEMENT
Title of Designated Preferred Shares:
______________ Preferred Stock
Aggregate number of Designated Preferred Shares:
[Aggregate number of Designated Depositary Shares:]
[Fractional Interest in a Designated Preferred Share represented by each
Designated Depositary Share:]
Liquidation Preference per Designated Preferred Share:
[$ ]
Price to Public of Designated [Preferred] [Depositary] Shares:
Purchase Price by Underwriters of Designated [Preferred] [Depositary] Shares:
[Dividend Period or Method of Determination:]
[Dividend Payment Dates or Method of Determination:]
Dividend Rate or Method of Determination:
Time of Delivery:
[time and date], 199_
Closing Location:
Shearman & Sterling, New York, New York
Funds in which Underwriters to make Payment:
[Other Terms:]
<PAGE> 33
ANNEX II
Matters to be Covered by Letter of
Coopers & Lybrand L.L.P.
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder, and the statement in
the Registration Statement in answer to Item 10 of Form S-3 is accurate insofar
as it relates to them;
(ii) In their opinion, the audited consolidated financial
statements of the Company and its consolidated subsidiaries included or
incorporated by reference in the Company's Annual Report on Form 10-K most
recently filed with the Commission and covered by their report included therein
(the "audited financials") comply as to form in all material respects with the
applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the published rules and regulations under the Act or the
Exchange Act, as applicable;
(iii) On the basis of limited procedures, not constituting an audit,
which have been carried out through a specified date not more than two business
days prior to the date of such letter,* including (1) a reading of the
unaudited consolidated financial statements of the Company and its consolidated
subsidiaries incorporated in the Registration Statement by reference to the
Company's Quarterly Reports on Form 10-Q filed with the commission from the
beginning of the Company's fiscal year through the date of such letter (the
"quarterly financials"), (2) a reading of the minutes of the meetings of the
Board of Directors, the committees of the Board of Directors and the
stockholders of the Company and the Holdings Subsidiaries since the date of the
audited financials, (3) inquiries of certain officials of the Company and the
Holdings Subsidiaries responsible for financial and accounting matters as to
transactions and events subsequent to the date of the audited financials, and
(4) such other procedures and inquiries as may be described in such letter,
nothing has come to their attention that caused them to believe that:
______________
* [In the case of letters delivered pursuant to Section 6(g)(i) of the
Underwriting Agreement, such procedures will be carried out through a
specified date not more than two business days prior to the effective
date of the Registration Statement or not more than two business days
prior to the most recent report filed with the Commission containing
financial statements, if the date of such report is later than such
effective date.]
<PAGE> 34
Ann. II - 2
(A) The quarterly financials were not prepared in conformity
with generally accepted accounting principles applied on a basis
consistent in all material respects with those followed in the
preparation of the audited financials, except as disclosed in the
Registration Statement or in such letter; or
(B) The quarterly financials reflect any adjustments other than
normal recurring adjustments, except as disclosed in the Registration
Statement or in such letter; or
(C) As of the last day of the month immediately preceding the
date of such letter, unless such day is less than [five] business days
prior to the date of such letter, in which case as of the last day of
the second month immediately preceding the date of such letter, (or such
other date as shall be mutually agreed upon by the Company and the
Representative[s], there was any change with respect to the Company and
its consolidated subsidiaries in the capital stock or any net change in
consolidated debt as compared, in each case, with the corresponding
amounts in the consolidated balance sheet of the Company and its
consolidated subsidiaries as of the date of the most recent quarterly
financials, except, in all instances, for changes which the Registration
Statement disclosed have occurred or may occur or which are described in
each such letter; or
(iv) They have performed certain specified procedures, including
comparisons with certain specified accounting records of the Company and its
consolidated subsidiaries, with respect to certain items of information
included in the Registration Statement, in the most recent report filed with
the Commission from the beginning of the Company's fiscal year through the date
of such letter* and, in the case of each letter to be delivered pursuant to
Section 6(g)(ii) of the Underwriting Agreement, in the Prospectus as amended or
supplemented through the date of such letter, and have found such items to be
in agreement with such records.
______________
* [In the case of letters delivered pursuant to Section 6(g)(i) of the
Underwriting Agreement, such procedures will be carried out through a
specified date not more than two business days prior to the effective
date of the Registration Statement or not more than two business days
prior to the most recent report filed with the Commission containing
financial statements, if the date of such report is later than such
effective date.]
<PAGE> 1
EXHIBIT 4.3
[FORM OF FACE OF PREFERRED STOCK CERTIFICATE]
_________________ PREFERRED STOCK
FORD HOLDINGS, INC.
Incorporated under the Laws of the State of Delaware
This Certificate is Transferable in New York
See Reverse for Certain Definitions
CUSIP ___________
CERTIFICATE NUMBER SHARES
This certifies that ___________________________ is the owner of
_________ fully paid and non-assessable shares of ___________________ Preferred
Stock of the par value of One Dollar ($1.00) each of Ford Holdings, Inc.
transferable upon the books of the corporation by the holder hereof in person
or by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Certificate of
Incorporation and all amendments thereto (copies of which are on file at the
office of the Transfer Agent) to all of which the holder hereof by acceptance
hereof expressly assents. This certificate is not valid until countersigned by
the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the corporation and the facsimile
signatures of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
____________________,
TRANSFER AGENT AND REGISTRAR
By________________________________ ______________________________________
Authorized Officer Secretary
______________________________________
Chairman of the Board
(FACSIMILE SEAL)
CERTIFICATE OF STOCK
<PAGE> 2
[FORM OF REVERSE OF PREFERRED STOCK CERTIFICATE]
FORD HOLDINGS, INC.
The Corporation will furnish without charge to each stockholder who so
requests, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such powers, preferences
and/or rights. Any such request should be addressed to the Secretary of Ford
Holdings, Inc., The American Road, Dearborn, Michigan 48121 or to the Transfer
Agent named on the face of this certificate.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--______Custodian_______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
For Value Received ___________________________ hereby sell, assign and
transfer unto (Please insert social security or other identifying number of
assignee ___________) _________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE) Shares of the stock
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ___________________________________________ Attorney, to transfer the
said stock on the books of the within named Corporation with full power of
substitution in the premises.
Dated:_______________________
X________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT
MUST CORRESPOND WITH THE NAME AS WRITTEN
UPON THE FACE OF THE CERTIFICATE, IN
EVERY PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT, OR ANY CHANGE WHATEVER.
<PAGE> 1
EXHIBIT 4.4
CERTIFICATE OF THE DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR
OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, OF
____________________ PREFERRED STOCK
OF
FORD HOLDINGS, INC.
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
FORD HOLDINGS, INC., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies that the following
resolution was adopted by the Board of Directors and by the Certificate of
Designations Committee, pursuant to authority conferred on the Certificate of
Designations Committee by the Board of Directors:
RESOLVED, that a series of preferred stock, par value $1.00 per
share, of the Corporation is hereby created and established, and the amount
thereof and the voting powers, designations, preferences and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions thereof are hereby fixed as follows:
1. Designation; Amount and Series. The series of Preferred
Stock created hereby shall comprise _____ shares [,each share a series,]
designated as "_________________ Preferred Stock" (referred to herein as the
"_________ Preferred Stock"). [Each share shall constitute a series, and there
shall be ___ groups each comprising _____ series (each group a "Series"), such
Series to be designated the ___________________ Preferred Stock, series __-1
through __-__ (hereinafter referred to as "Series __")[, _______________
Preferred Stock, series __-1 through __-__ (hereinafter referred to as "Series
__")] [add additional Series as applicable].]
2. Definitions. Unless the context or use indicates another or
different meaning or intent, the following terms shall have the following
meanings, whether used in the singular or plural:
"Affiliate" shall mean any Person controlled by, in control of,
or under common control with, the Corporation.
"Board of Directors" shall mean the Board of Directors
<PAGE> 2
- 2 -
of the Corporation or, unless the context otherwise requires, an
authorized committee thereof.
["Business Day" shall mean any day other than a Saturday, Sunday
or day on which banks in the State of New York are authorized or
obligated by law or executive order to close.]
"Cash-Out Merger" shall have the meaning specified in Section
[7](b) hereof.
"Certificate of Designations Committee" shall mean the committee
of the Board of Directors on which the Board of Directors has conferred
authority to fix the designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of ____________ Preferred Stock.
"Common Stock" shall mean all shares now or hereafter issued of
the class of common stock of the Corporation presently authorized and
any other shares of stock into which such stock may hereafter be
exchanged from time to time.
"Corporation" shall mean Ford Holdings, Inc., a Delaware
corporation, or its successor.
"Date of Original Issue" shall mean, as to any share, the date on
which the Corporation initially issues such share [; provided, however,
that any share issued prior to ___________ shall be deemed to have a
Date of Original Issue that is the first date on which any shares of
_________ Preferred Stock shall have been issued].
"Default Period" shall have the meaning specified in Section
[8](c)(i) hereof.
["Dividend Payment Date" shall have the meaning specified in
Section 3(a) hereof.] [Applicable to Alternate 1 of Section 3.]
["Dividend Payment Date" shall mean, with respect to each share
of ______________ Preferred Stock, the first Business Day of the
Subsequent Dividend Period immediately following the end of each
Dividend Period applicable thereto, regardless of its length. [Further
definition applicable to Auction Stock or Remarketed Stock.]]
[Applicable to Alternate 2 of Section 3.]
["Dividend Periods" shall mean quarterly dividend
<PAGE> 3
- 3 -
periods commencing on the first day of _____, _____, _____ and _____ of
each year and ending on and including the day preceding the first day of
the next succeeding Dividend Period (other than the Initial Dividend
Period)]. [Applicable to Alternate 1 of Section 3.]
["Dividend Period" and "Dividend Periods" shall mean, as to each
share of ___________________ Preferred Stock, each period, to which one
or more Dividend Payment Dates may relate, with respect to which
dividends on such share shall accumulate and be payable, each such
Dividend Period to be determined pursuant to either the Auction Method
or the Remarketing Method.] [Applicable to Alternate 2 of Section 3.]
["Dividend Rate" and "Dividend Rates" shall mean, as to each
share of _____________ Preferred Stock, the rate at which dividends
accumulate and are payable on such share during a Dividend Period, each
such Dividend Rate to be determined pursuant to either the Auction
Method or the Remarketing Method.] [Applicable to Alternate 2 of
Section 3.]
"Flexible Rate Auction Preferred Stock" shall mean the Flexible
Rate Auction Preferred Stock (Exchange), Series A, Series B, Series C,
Series D, Series E, Series F, Series G, Series H, Series I, Series J and
Series K, par value $1.00 per share, liquidation preference $100,000 per
share, of the Corporation.
"Holder" or "holder" shall mean, when used with respect to the
____________ Preferred Stock, the Flexible Rate Auction Preferred Stock,
the Series A Preferred Stock, the Series B Preferred Stock, [list other
outstanding series of Preferred Stock, as applicable], the Parity
Preferred or the Voting Preferred, the holder of such shares as the same
appears on the Stock Books.
"Initial Dividend Period" shall mean the period commencing on the
Date of Original Issue and ending on (and including) the day preceding
the first day of the next succeeding Dividend Period, unless the Date of
Original Issue occurs after the record date for the Dividend Payment
Date occurring in such Dividend Period and prior to the first day of
such Dividend Period [or occurs prior to __________], in which case the
Initial Dividend Period shall end on (and include) the day preceding the
first day of the second next succeeding Dividend Period.
"Junior Liquidation Stock" shall have the meaning
<PAGE> 4
- 4 -
specified in Section [7](a) hereof.
"Junior Stock" shall have the meaning specified in Section 3[(c)]
hereof.
"Liquidation Preferred" shall have the meaning specified in
Section [7](d) hereof.
["Merger Premium" shall mean a premium payable in respect of
shares of ______________ Preferred Stock if, and in the amount,
determined by ______________, under circumstances set forth in Section
[8](e)(iii) hereof upon the consolidation or merger of the Corporation
with or into any other corporation.]
"Outstanding" shall mean, as of any date, shares of
_________________ Preferred Stock, Voting Preferred or Parity Preferred,
as the case may be, theretofore issued by the Corporation except,
without duplication, (i) any shares of ___________ Preferred Stock,
Voting Preferred or Parity Preferred, as the case may be, theretofore
cancelled or delivered for cancellation by the Corporation, (ii) any
shares of __________ Preferred Stock, Voting Preferred or Parity
Preferred, as the case may be, represented by any certificate in lieu of
which a new certificate has been executed and delivered by the
Corporation and (iii) any shares of _________ Preferred Stock, Voting
Preferred or Parity Preferred, as the case may be, held by the
Corporation as treasury stock.
"Parity Preferred" shall have the meaning specified in Section
[8](a) hereof.
"Person" shall mean and include an individual, a
partnership, a corporation, a trust, an unincorporated association, a
joint venture or other entity.
"Regular Preferred Directors" shall have the meaning specified in
Section [8](a) hereof.
"Series A Preferred Stock" shall mean the Series A Cumulative
Preferred Stock, par value $1.00 per share, liquidation preference $100,000 per
share, of the Corporation.
"Series B Preferred Stock" shall mean the Series B Cumulative
Preferred Stock, par value $1.00 per share, liquidation preference $100,000 per
share, of the Corporation.
["___________ Preferred Stock" shall mean the [describe any other
outstanding series of Preferred Stock] of the Corporation.]
<PAGE> 5
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"Special Preferred Directors" shall have the meaning specified in
Section [8](c)(i) hereof.
"Stock Books" shall mean the stock transfer books of the
Corporation maintained by the Corporation or any agent of the
Corporation.
["Subsequent Dividend Period" and "Subsequent Dividend Periods"
shall mean, for each share of ______________ Preferred Stock, each
Dividend Period applicable thereto other than the Initial Dividend
Period applicable thereto.]
"Transfer Agent" shall mean ______________ or such other agent or
agents of the Corporation as may be designated by the Board of Directors
as transfer agent for the __________ Preferred Stock.
"Voting Preferred" shall have the meaning specified in Section
[8](b) hereof.
[Additional definitions applicable to Auction Method, Remarketing Method or
other methods of determining entitlement to and amount of dividends, and any
other terms of the ________________ Preferred Stock, may be inserted.]
3. Dividends. [Alternate 1] [(a) The holders of shares of
______________ Preferred Stock, shall be entitled to receive, when, as and if
declared by the Board of Directors, out of funds legally available therefor,
cumulative cash dividends at the rate per annum of $______ per share of
_________ Preferred Stock. Dividends on the __________ Preferred Stock shall
be cumulative from the Date of Original Issue, whether or not in any Dividend
Period or Periods there shall be funds of the Company legally available for the
payment of such dividends, and shall be payable quarterly, when, as and if
declared by the Board of Directors on the first Business Day of ______, _____,
_______ and ________ of each year (each a "Dividend Payment Date"), commencing
on the Dividend Payment Date next succeeding the Date of Original Issue (unless
the Date of Original Issue occurs after the record date for such Dividend
Payment Date and prior to such Dividend Payment Date [or occurs prior to
__________], in which case commencing on the second Dividend Payment Date next
succeeding the Date of Original Issue), or at such additional times and for
such interim periods, if any, as determined by the Board of Directors. Each
such dividend shall be payable in arrears to Holders of shares of the _______
Preferred Stock as they appear on the Stock Books at the close of business on
such record dates, not more than 60 days preceding the payment dates
<PAGE> 6
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thereof, as shall be fixed by the Board of Directors. Dividends on account of
arrears for any past Dividend Periods may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to Holders on such
date, not exceeding 60 days preceding the payment date thereof, as may be fixed
by the Board of Directors.
(b) The amount of dividends payable for each full Dividend
Period on the ___________ Preferred Stock shall be computed by dividing the
annual dividend rate by four. The amount of dividends payable for any period
shorter or longer than a full Dividend Period on the __________ Preferred Stock
(including the Initial Dividend Period, if applicable), shall be computed on
the basis of a 360-day year consisting of twelve 30-day months. Holders of
shares of _________ Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of full cumulative
dividends, as herein provided, on the _________ Preferred Stock. No interest,
or sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the _________ Preferred Stock which may be in
arrears.]
[Alternate 2] [(a) Dividends on each share of ______________
Preferred Stock shall accumulate from the Date of Original Issue thereof and
shall be payable on the last Dividend Payment Date with respect to each
Dividend Period applicable thereto, regardless of its length, and on each
additional Dividend Payment Date, if any, for such share. The Dividend Rate
for shares of each Series of _________________ Preferred Stock for the Initial
Dividend Period with respect to such Series shall be ____% per annum for Series
__[, ___% per annum for Series __] [add additional Series as applicable].
Thereafter, the determination of the duration of each subsequent Dividend
Period with respect to each share of __________________ Preferred Stock and the
Dividend Rate and each Dividend Payment Date for such Subsequent Dividend
Period shall be determined by either the Auction Method or the Remarketing
Method.] [Description of Auction Method and Remarketing Method.]
[Alternate 3] [Description of alternate method of determining
entitlement to and amount of dividends, and any other terms of the
_______________ Preferred Stock.]
[(c)] So long as any shares of __________ Preferred Stock are
Outstanding, the Corporation shall not declare, pay or set apart for payment
any dividend (other than a dividend in shares of, or options, warrants or
rights to subscribe for or purchase shares of, Common Stock or Junior Stock (as
defined below)) or other distribution in respect of its Common Stock or any
other stock of the Corporation ranking junior to the shares
<PAGE> 7
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of _________ Preferred Stock as to dividends or upon liquidation ("Junior
Stock"), or call for redemption, redeem, purchase or otherwise acquire for
consideration any shares of its Common Stock or Junior Stock (except by
conversion into or exchange for other shares of Common Stock or Junior Stock)
unless full cumulative dividends on all shares of _________ Preferred Stock for
all past Dividend Periods shall have been declared and paid (or declared and a
sum sufficient for the payment of the dividends set apart for payment). No
dividends shall be declared or paid or set apart for payment on any shares of
_________ Preferred Stock for any period unless full cumulative dividends have
been or contemporaneously are declared and paid on each of the shares of
_________ Preferred Stock and Parity Preferred through the most recent
applicable Dividend Payment Date for such shares.
[(d)] The Corporation may not purchase or otherwise acquire any
shares of _________ Preferred Stock during any period when dividend payments on
any Outstanding shares of __________ Preferred Stock or Parity Preferred are in
arrears.
[4. Auction Procedures. If applicable, insert description of
Auction procedures.]
[5. Remarketing Procedures. If applicable, insert description
of Remarketing procedures.]
[6. Miscellaneous. If applicable, insert description of
additional provisions relating to Auction and Remarketing procedures.]
[7]. Rights on Liquidation or Cash-Out Merger. (a) Upon the
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, holders of shares of _________ Preferred
Stock shall be entitled to receive, out of assets of the Corporation available
for distribution to stockholders after satisfying claims of creditors but
before any payment or distribution on the Common Stock or on any other class of
stock ranking junior to the shares of _________ Preferred Stock upon
liquidation ("Junior Liquidation Stock"), a liquidating distribution in the
amount of $100,000 per share, which shall be the liquidation preference of such
shares, plus an amount equal to accumulated and unpaid dividends on each such
share (whether or not declared) to and including the date of final dissolution.
Unless and until payment in full has been made to holders of shares of the
_________ Preferred Stock of the liquidating distributions to which they are
entitled as provided in this Section [7], no dividends or distributions shall
be made to holders of the Common Stock or the Junior Liquidation Stock, no
payment or delivery or commitment to make payment or delivery
<PAGE> 8
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of any money or assets to any Affiliate shall be made and no purchase,
redemption or other acquisition for any consideration by the Corporation shall
be made in respect of the Common Stock or the Junior Liquidation Stock. After
the payment to holders of shares of _________ Preferred Stock of the full
amount of the liquidating distributions to which they are entitled pursuant to
the second next preceding sentence, holders of the shares of _________
Preferred Stock (in their capacity as such holders) shall have no right or
claim to any of the remaining assets of the Corporation.
(b) In any merger or consolidation of the Corporation with or
into any other corporation, including any Affiliate, or a merger or
consolidation of any other corporation, including any Affiliate, with or into
the Corporation, which merger or consolidation by its terms provides for the
payment of only cash to holders of the _________ Preferred Stock, each holder
of _________ Preferred Stock shall be entitled to receive an amount equal to
the liquidation preference of the shares of _________ Preferred Stock held by
such holder, plus an amount equal to accumulated and unpaid dividends on such
shares to and including the date of payment thereof, and no more in exchange
for such shares of _________ Preferred Stock (a "Cash-Out Merger").
(c) Neither the sale, lease or exchange (for cash, stock,
securities or other consideration) of all or substantially all of the property
and assets of the Corporation, nor the merger or consolidation of any other
corporation with or into the Corporation, nor the merger or consolidation of
the Corporation with or into any other corporation, shall be deemed to be a
dissolution, liquidation or winding up of the affairs of the Corporation,
voluntary or involuntary, for the purposes of this Section [7]; provided,
however, that any Cash-Out Merger shall be deemed to be a liquidation of the
Corporation solely for purposes of determining the rights of the holders of
shares of _________ Preferred Stock in respect of such Cash-Out Merger.
(d) If upon liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the assets of the
Corporation available for distribution to the holders of ________ Preferred
Stock and any other preferred stock of the Corporation, including the Flexible
Rate Auction Preferred Stock, the Series A Preferred Stock, [and] the Series B
Preferred Stock, [and [list other outstanding series of Preferred Stock, as
applicable]], ranking upon liquidation on a parity with the ________ Preferred
Stock (the "Liquidation Preferred"), shall be insufficient to pay the full
amount of the liquidating distributions to which holders of _________ Preferred
Stock are entitled pursuant to Section [7](a) above and liquidating
distributions to which holders of the Liquidation Preferred are
<PAGE> 9
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entitled, then such assets shall be distributed among the holders of _________
Preferred Stock and Liquidation Preferred ratably in proportion to the full
amount of distributions to which each holder of _________ Preferred Stock and
Liquidation Preferred would have been entitled.
[8]. Voting Rights. (a) Election of Directors. Holders of the
shares of _______ Preferred Stock and shares of Voting Preferred shall have the
right, voting as a single class together with holders of all other shares of
preferred stock of the Corporation, including the Flexible Rate Auction
Preferred Stock, the Series A Preferred Stock, [and] the Series B Preferred
Stock, [list other outstanding series of Preferred stock, as applicable]],
ranking on a parity with the shares of _________ Preferred Stock as to the
payment of dividends ("Parity Preferred"), to elect a number of directors of
the Corporation (the "Regular Preferred Directors") which is equal to the
smallest whole number that is not less than 25% of the directors of the
Corporation. Holders of all such stock shall vote in such elections on the
basis of one vote per $100,000 liquidation preference and not cumulatively and
the holder or holders of one-third of the shares of such stock then
Outstanding, present in person or by proxy, shall constitute a quorum for the
election of directors by them.
(b) Other Matters. On all matters other than the election of
directors as to which stockholders generally have a vote, each share of
__________ Preferred Stock and Voting Preferred shall be entitled to such
number of votes as determined below and each share of Common Stock will be
entitled to one vote. The shares of __________ Preferred Stock shall vote
together as a single class with all shares of Common Stock and all other shares
of preferred stock, including the Flexible Rate Auction Preferred Stock, the
Series A Preferred Stock, [and] the Series B Preferred Stock, [and [list other
outstanding series of Preferred Stock, as applicable]], which have all the same
voting rights as conferred upon the _________ Preferred Stock in Section [8](a)
and this Section [8](b) (the "Voting Preferred"). Holders of shares of
__________ Preferred Stock and Voting Preferred shall be entitled to the number
of votes determined pursuant to the following formula per $100,000 liquidation
preference:
X = [(Y divided by .75) minus Y] divided by Z
X: number of votes per share of _________ Preferred
Stock and Voting Preferred per $100,000 liquidation
preference.
Y: number of shares of outstanding Common Stock on the
applicable record date.
<PAGE> 10
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Z: amount equal to (I) number of shares of Outstanding _________
Preferred Stock on the applicable record date plus (II) sum of
the liquidation preference of all Outstanding Voting Preferred on
the applicable record date divided by 100,000.
The Corporation shall mail or cause the Transfer Agent to mail to Holders of
shares of _________ Preferred Stock notice of any meeting of stockholders not
less than 20 days nor more than 60 days prior to the date fixed for such
meeting. Except as provided in Section [8](c), the number of directors of the
Corporation shall be determined in accordance with the By-Laws of the
Corporation.
(c) Right to Elect Two Additional Members of the Board of
Directors. (i) During any period (referred to herein as a "Default
Period") when dividend payments on any shares of ________ Preferred
Stock or Parity Preferred for such number of Dividend Periods or
portions thereof (or the equivalent thereof in the case of Parity
Preferred), which in the aggregate contain at least 540 days, shall not
have been paid or declared and a sum sufficient for the payment thereof
set aside for payment, then in any such case the number of directors of
the Corporation shall automatically be increased by two additional
directors and the holders of the shares of _________ Preferred Stock and
Parity Preferred shall possess full voting powers (to the exclusion of
the holders of all other series and classes of capital stock of the
Corporation), voting as a single class, to elect such two directors (the
"Special Preferred Directors").
(ii) The Default Period and voting rights created by the
occurrence of the circumstances described in Section [8](c)(i) shall
continue unless and until all accumulated and unpaid dividends on any of
the then Outstanding shares of _________ Preferred Stock and Parity
Preferred, including in the case of _________ Preferred Stock the
accumulated and unpaid dividends for the current Dividend Period, shall
have been paid or sufficient funds for the payment thereof shall have
been deposited with the Transfer Agent, at which time the voting rights
described in Section [8](c)(i) shall cease, subject always, however, to
the revesting of such voting power in the holders of all shares of
________ Preferred Stock and Parity Preferred upon the further
occurrence of any of the circumstances described in Section [8](c)(i)
above.
(iii) The term of office of all persons who are directors
of the Corporation at the time of the special meeting referred to in
Section [8](c)(v) below shall
<PAGE> 11
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continue, notwithstanding the election of Special Preferred Directors at
such meeting by the holders of shares of _________ Preferred Stock and
Parity Preferred. The Regular Preferred Directors and the Special
Preferred Directors, together with the incumbent directors elected by
the holders of the Common Stock, shall constitute the duly elected
directors of the Corporation.
(iv) Simultaneously with the expiration of the Default
Period, the term of office of the Special Preferred Directors elected by
the holders of shares of ________ Preferred Stock and Parity Preferred
at the special meeting referred to in Section [8](c)(v) below shall
terminate, the number of directors of the Corporation shall
automatically be decreased by two, only the Regular Preferred Directors
and the incumbent directors otherwise elected by the holders of the
Common Stock shall constitute the duly elected directors of the
Corporation, and the right of the holders of ________ Preferred Stock
and Parity Preferred to elect directors during a Default Period as
provided above shall cease.
(v) Within five days following the accrual of any right
of the holders of shares of _________ Preferred Stock and Parity
Preferred to elect directors upon the occurrence of a Default Period as
described in Section [8](c)(i), the Corporation shall mail or cause to
be mailed to the holders of _________ Preferred Stock and Parity
Preferred notice of a special meeting of stockholders for a date not
less than 20 days nor more than 60 days after the date of such notice.
If the Corporation does not mail or cause to be mailed notice of such
meeting as provided in the next preceding sentence, a meeting may be
called by any holder of ________ Preferred Stock or Parity Preferred.
The date on which such right accrued shall be the record date for
determining the holders of stock entitled to notice of and to vote at
the special meeting. Holders of all such stock shall vote in such
elections on the basis of one vote per $100,000 liquidation preference
and not cumulatively and the holder or holders of one-third of the
shares of such stock then Outstanding, present in person or by proxy,
shall constitute a quorum for the election of directors by them. At any
such meeting or adjournment thereof in the absence of a quorum, a
majority of the holders of such stock present in person or by proxy
shall have the power to adjourn the meeting for the election of
directors without notice, other than an announcement at the meeting,
until a quorum is present.
(d) Removal of Regular Preferred Directors and Special Preferred
Directors. Except as provided in Section [8](c)(iv),
<PAGE> 12
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Regular Preferred Directors and Special Preferred Directors shall (subject to
the provisions of any applicable law) be subject to removal only by the vote of
the holders of a majority of the Outstanding shares of __________ Preferred
Stock, Voting Preferred and Parity Preferred in the case of Regular Preferred
Directors, and the holders of a majority of the Outstanding shares of
__________ Preferred Stock and Parity Preferred in the case of Special
Preferred Directors, in each case, voting together as a single class. Any
vacancy in the Board of Directors of the Corporation occurring by reason of
such removal or otherwise may be filled by vote of a majority of the
Outstanding shares of ________ Preferred Stock, Voting Preferred and Parity
Preferred in respect of any Regular Preferred Director and by a vote of a
majority of the Outstanding shares of ________ Preferred Stock and Parity
Preferred in respect of any Special Preferred Director, in each case, voting
together as a single class, in person or by proxy at a special meeting of
stockholders called and held in accordance with the provisions set forth above,
and, if not so filled, such vacancy shall (subject to the provisions of any
applicable law) be filled by a vote of a majority of the remaining Regular
Preferred Directors and any Special Preferred Directors.
(e) Right to Vote in Certain Events. (i) Without the
affirmative vote of the Holders of at least two-thirds of the
Outstanding shares of ________ Preferred Stock voting in person or by
proxy at a special meeting for the purpose, or the unanimous written
consent of the Holders of the Outstanding shares of ________ Preferred
Stock acting without such a meeting (subject to the provisions of any
applicable law), the Corporation may not amend, alter or repeal any
provisions of this Certificate of Designations or the Certificate of
Incorporation so as to affect adversely the preferences, special rights
or powers of the shares of ________ Preferred Stock. Any increase in
the authorized number of any series of capital stock ranking on a parity
with the ________ Preferred Stock with respect to the payment of
dividends or the distribution of assets, or creation, authorization or
issuance of any securities convertible into, or warrants, options or
similar rights to purchase, acquire or receive, shares of such capital
stock or reclassification of any authorized capital stock of the
Corporation into any share ranking on a parity with the ________
Preferred Stock with respect to the payment of dividends or the
distribution of assets shall be deemed not to affect adversely the
preferences, special rights or powers of the shares of ________
Preferred Stock.
(ii) Without the affirmative vote of the holders of at
least two-thirds of the Outstanding shares of ________
<PAGE> 13
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Preferred Stock and Parity Preferred, voting together as a single class,
in person or by proxy at a special meeting for the purpose, or the
unanimous written consent of the Holders of the Outstanding shares of
________ Preferred Stock and Parity Preferred acting without such a
meeting (subject to the provisions of any applicable law), the
Corporation may not create, authorize or issue shares of any class or
series of capital stock ranking senior to the shares of ________
Preferred Stock and Parity Preferred with respect to the payment of
dividends or the distribution of assets, or create, authorize or issue
any securities convertible into, or warrants, options or similar rights
to purchase, acquire or receive, shares of capital stock ranking senior
to the shares of ________ Preferred Stock and Parity Preferred with
respect to the payment of dividends or the distribution of assets or
reclassify any authorized capital stock of the Corporation into any
shares ranking senior to the shares of ________ Preferred Stock and
Parity Preferred with respect to the payment of dividends or the
distribution of assets.
(iii) Without the affirmative vote of the holders of a
majority of the Outstanding shares of ________ Preferred Stock, Voting
Preferred and Parity Preferred, voting together as a single class, in
person or by proxy at a special meeting for the purpose, or the
unanimous written consent of the Holders of the Outstanding shares of
________ Preferred Stock, Voting Preferred and Parity Preferred acting
without such a meeting (subject to the provisions of any applicable
law), the Corporation may not sell, lease or convey all or substantially
all of the assets of the Corporation, or consolidate or merge with or
into any other corporation unless, in the case of a consolidation or
merger, each holder of shares of ________ Preferred Stock, Voting
Preferred and Parity Preferred shall receive, upon such consolidation or
merger, an amount in cash equal to the liquidation preference, premium,
if any, and accumulated and unpaid dividends through the date of payment
of such shares of ________ Preferred Stock, Voting Preferred and Parity
Preferred in exchange for such shares of ________ Preferred Stock,
Voting Preferred and Parity Preferred.
(f) No Right to Vote in Certain Events. With respect to any
right of the holders of shares of ________ Preferred Stock to vote on any
matter, whether such right is created by this Certificate of Designations, by
applicable law or otherwise, no Holder of any share of ________ Preferred Stock
shall be entitled to vote and no share of ________ Preferred Stock shall be
deemed to be Outstanding for the purpose of voting or determining the number of
shares required to constitute a quorum, if prior to or concurrently with a
determination of shares entitled to vote or
<PAGE> 14
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of shares deemed Outstanding for quorum purposes, as the case may be, such
share is held beneficially or of record by the Corporation or any Affiliate of
the Corporation.
[9]. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any shares of ________ Preferred Stock as
shown on the Stock Books as the true and lawful owner thereof for all purposes,
and neither the Corporation nor the Transfer Agent shall be affected by any
notice to the contrary.
IN WITNESS WHEREOF, FORD HOLDINGS, INC. has caused this
Certificate to be made under the seal of the Corporation and signed by
______________, its ___________, and attested by ___________ , its
____________, this ______ day of __________, 199_.
FORD HOLDINGS, INC.
By _____________________________
(CORPORATE SEAL)
ATTEST:
By ___________________________
<PAGE> 1
EXHIBIT 4.5
FORD HOLDINGS, INC.
_______________, AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
DATED AS OF __________, 199_
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
Form of Receipts, Deposit of Stock,
Execution and Delivery, Transfer
and Surrender of Receipts
SECTION 2.01. Form and Transfer of Receipts . . . . . . . . 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof . . . . . . . 3
SECTION 2.03. Registration of Transfer of Receipts . . . . 4
SECTION 2.04. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal
of Stock . . . . . . . . . . . . . . . . 4
SECTION 2.05. Limitations on Execution and Delivery,
Transfer, Surrender and Exchange of
Receipts . . . . . . . . . . . . . . . . 5
SECTION 2.06. Lost Receipts, etc. . . . . . . . . . . . . . 5
SECTION 2.07. Cancellation and Destruction of Surrendered
Receipts . . . . . . . . . . . . . . . . 6
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other
Information . . . . . . . . . . . . . . . 6
SECTION 3.02. Payment of Fees and Expenses. . . . . . . . . 6
SECTION 3.03. Warranty as to Stock . . . . . . . . . . . . 6
SECTION 3.04. Warranty as to Receipts . . . . . . . . . . . 6
i
<PAGE> 3
Page
----
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions . . . . . . . . . . . . 6
SECTION 4.02. Distributions of Securities or Property
Other than Cash, Rights, Preferences
or Privileges . . . . . . . . . . . . 7
SECTION 4.03. Subscription Rights, Preferences, or
Privileges . . . . . . . . . . . . . . 7
SECTION 4.04. Notice of Dividends, etc.; Record Date
for Holders of Receipts . . . . . . . . 8
SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . 9
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. 9
SECTION 4.07. Delivery of Reports . . . . . . . . . . . . 10
SECTION 4.08. Lists of Receipt Holders . . . . . . . . . 10
SECTION 4.09 Tax and Regulatory Compliance . . . . . . . 10
SECTION 4.10. Withholding . . . . . . . . . . . . . . . . 10
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and
Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . . . 10
SECTION 5.02. Prevention of or Delay in Performance by
the Depositary, the Depositary's Agents,
the Registrar or the Company . . . . . 11
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and
the Company . . . . . . . . . . . . . 11
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary . . 12
SECTION 5.05. Corporate Notices and Reports . . . . . . . 13
SECTION 5.06. Indemnification by the Company . . . . . . 13
SECTION 5.07. Fees and Expenses . . . . . . . . . . . . . 13
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . 14
SECTION 6.02. Termination . . . . . . . . . . . . . . . . 14
ii
<PAGE> 4
Page
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ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. . . . . . . . . . . . . . . . 15
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . 15
SECTION 7.03. Invalidity of Provisions . . . . . . . . . 15
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . 15
SECTION 7.05. Depositary's Agents . . . . . . . . . . . . 16
SECTION 7.06. Holders of Receipts Are Parties . . . . . . 16
SECTION 7.07. Governing Law . . . . . . . . . . . . . . . 16
SECTION 7.08. Inspection of Deposit Agreement
and Certificate . . . . . . . . . . . . 16
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . 16
iii
<PAGE> 5
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _________________, 199_, among FORD
HOLDINGS, INC., a Delaware corporation, ________________, a _____________, and
the holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of ________________________, par
value $1.00 per share, $______ liquidation preference of FORD HOLDINGS, INC.
with the Depositary for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts evidencing Depositary Shares each
representing 1/_____ of a share of ________________________ Preferred Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the Certificate of the Designations, Powers,
Preferences and Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions Thereof filed with the Secretary of
State of the State of Delaware establishing the Stock as a series of preferred
stock of the Company.
"Company" shall mean Ford Holdings, Inc., a Delaware corporation, and
its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean ______________, a _______________, and any
successor as Depositary hereunder.
"Depositary Shares" shall mean depositary shares, evidenced by
Receipts issued hereunder and constituted by the Stock deposited with the
Depositary hereunder. Each Depositary Share shall, as provided herein,
represent 1/_____ of a share of Stock and be evidenced by a Receipt.
<PAGE> 6
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"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the corporate trust office of the
Depositary in ____________, at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts, substantially in
the form set forth as Exhibit A hereto, issued hereunder, whether in definitive
or temporary form and evidencing the number of Depositary Shares specified
therein.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's _____________________, par
value $1.00 per share, $______ liquidation preference per share.
ARTICLE II
Form of Receipts, Deposit of
Stock, Execution and Delivery,
Transfer and Surrender of Receipts
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders, and
shall be substantially in the form set forth in Exhibit A annexed hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Pending the preparation of definitive Receipts, the Depositary, upon the
written order of the Company, delivered in compliance with Section 2.02, shall
execute and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the Depositary
will cause definitive Receipts to be prepared without unreasonable delay.
After the preparation of definitive Receipts, the temporary Receipts shall be
exchangeable for definitive Receipts upon surrender of the temporary Receipts
at the Depositary's Office or such other offices, if any, as the Depositary may
designate, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of
Depositary Shares as represented by the surrendered temporary
<PAGE> 7
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Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor to the holder of the Receipts. Until so exchanged,
the temporary Receipts shall in all respects be entitled to the same benefits
under this Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly
authorized officer of the Depositary or, if a Registrar for the Receipts (other
than the Depositary) shall have been appointed, by manual or facsimile
signature of a duly authorized officer of the Depositary and countersigned
manually by a duly authorized officer of such Registrar. The Depositary shall
record on its books each Receipt so signed and delivered as hereinafter
provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or traded or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.03, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions, the exchange of Depositary Shares for Stock or any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02 Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of the Stock under
this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited, properly endorsed or accompanied,
if required by the Depositary, by a duly executed instrument of transfer or
endorsement, in form satisfactory to the Depositary, together with all such
certifications as may be required by the Depositary in accordance with the
provisions of this Deposit Agreement, and together with a written order of the
Company directing the
<PAGE> 8
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Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places as the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited in accordance with the provisions of this Section, together
with the other documents required as above specified, and upon recordation of
the Stock on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Depositary's Office
or such other offices, if any, as the Depositary may designate. Delivery at
other offices shall be at the risk and expense of the person requesting such
delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more
than the number of shares constituting the Stock as set forth in the
Certificate, as such may be amended.
SECTION 2.03. Registration of Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary shall register
on its books from time to time transfers of Receipts upon any surrender thereof
by the holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.04. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Stock. Upon surrender by a holder of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts
in the authorized denomination or denominations requested, evidencing the
aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock or his duly authorized attorney may withdraw the Stock and all
money and other property, if any, represented thereby by surrendering such
Receipt or Receipts, at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the
<PAGE> 9
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Depositary shall deliver or cause to be delivered to such holder or to the
person or persons designated by such holder as hereinafter provided, the number
of whole shares of Stock and all money and other property, if any, represented
by the Receipt or Receipts so surrendered for withdrawal, but holders of such
whole shares of Stock will not thereafter be entitled to deposit such Stock
hereunder or to receive Depositary Shares therefor. If a Receipt or Receipts
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or upon his order, a new Receipt evidencing
such excess number of Depositary Shares. In no event will fractional shares of
Stock be distributed by the Depositary. Delivery of the Stock and money and
other property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the record holder of the Receipt
or Receipts being surrendered for withdrawal of Stock, such holders shall
execute and deliver to the Depositary a written order so directing the
Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.05. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by a holder of a
Receipt pursuant to this Deposit Agreement, may require the production of
evidence satisfactory to it as to the identity and genuineness of any signature
(or the authority of any signature) and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock may be suspended, the registration of transfer of Receipts may be refused
and the registration of transfer, surrender or exchange of outstanding Receipts
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable
by
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the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Deposit
Agreement.
SECTION 2.06. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary and the
Company of such destruction or loss or theft of such Receipt, of the
authenticity thereof and of his or her ownership thereof and (ii) the
furnishing to the Depositary and the Company of indemnification satisfactory to
them.
SECTION 2.07. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer or exchange,
of any Receipt or the withdrawal of the Stock represented by the Depositary
Shares evidenced by any Receipt or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.07, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid.
Registration of transfer of any Receipt or any withdrawal of Stock and all
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the Stock or other property represented by the Depositary Shares
evidenced by such Receipt and not theretofore sold may be sold for the account
of the holder thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to any payment of
such fees or expenses, the holder of such Receipt remaining liable for any
deficiency.
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SECTION 3.03. Warranty as to Stock. The Company hereby represents
and warrants that the Stock, when issued, will be duly authorized, validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
SECTION 3.04. Warranty as to Receipts. The Company hereby represents
and warrants that the Receipts, when issued, will represent legal and valid
interests in the Stock. Such representation and warranty shall survive the
deposit of the Stock and the issuance of Receipts.
ARTICLE IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock (including a
cash distribution in respect of a liquidation, merger or consolidation of the
Company), the Depositary shall, subject to Sections 3.01 and 3.02, distribute
to record holders of Receipts on the record date fixed pursuant to Section 4.04
such amounts of such sum as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall
withhold from any cash dividend or other cash distribution in respect of the
Stock represented by the Receipts held by any holder an amount on account of
taxes, the amount made available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such withholding
shall be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount, however, as
can be distributed without attributing to any holder of Depositary Shares a
fraction of one cent, and any balance not so distributable shall be held by
the Depositary (without liability for interest thereon) and shall be added to
and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding.
SECTION 4.02. Distributions of Securities or Property Other than
Cash, Rights, Preference or Privileges. Whenever the Depositary shall receive
any distribution of securities or property other than cash, rights, preferences
or privileges upon the Stock, the Depositary shall, subject to Sections 3.01
and 3.02, distribute to record holders of Receipts on the record date fixed
pursuant to Section 4.04 such amounts of the securities or property received by
it as are, as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders. If in the
opinion of the Depositary after consultation with the Company such distribution
cannot be made proportionately among such record holders, or if for any other
reason (including any requirement that the Company or the Depositary withhold
an amount on account of taxes) the Depositary deems, after consultation with
the Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or
<PAGE> 12
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places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities or
property to the Depositary and the Depositary shall not make any distribution
of such securities or property to the holders of Receipts unless the Company
shall have provided the Depositary an opinion of counsel stating that such
securities or property has been registered under the Securities Act or do not
need to be registered in connection with such distributions.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such
rights, preferences or privileges or by such other method as may be deemed
appropriate by the Depositary in its discretion with the approval of the
Company; provided, however, that if at the time of issue or offer of any such
rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, then the Depositary, in its discretion (with approval
of the Company, in any case where the Depositary has determined that it is not
feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received in
cash.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders
of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that
the Company will file promptly a registration statement pursuant to such Act
with respect to such rights, preferences or privileges and securities and use
its best efforts and take all steps available to it to cause such registration
statement to become effective sufficiently in advance of the expiration of such
rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make
available to the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such registration
statement shall have become effective, or unless the offering and sale of such
securities to such holders are exempt from registration under the provisions of
the Securities Act, and the Company shall have provided to the Depositary an
opinion of counsel to such effect.
<PAGE> 13
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If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the Company
will use its best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges.
SECTION 4.04. Notice of Dividends, etc.; Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, or whenever the Depositary and the Company shall decide it is
appropriate, the record date shall be the same time and date as the record date
fixed by the Company with respect to the Stock for the determination of the
holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting, or for any other
reasons which the Company and the Depositary shall deem appropriate.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote or upon receipt of any
consent to corporate action without a meeting, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting or
stating that corporate action by written consent is to be taken and (ii) a
statement that the holders of Receipts at the close of business on the relevant
record date may, subject to any applicable restrictions, instruct the
Depositary as to the exercise of the voting rights pertaining to the amount of
Stock represented by their respective Depositary Shares (including an express
indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Receipts on the relevant record date, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted
or to give or to withhold consent respecting, in accordance with the
instructions set forth in such requests, the maximum number of shares of Stock
represented by the Depositary Shares evidenced by all Receipts as to which any
particular voting instructions are received. The Company hereby agrees to take
all reasonable action which may be deemed necessary by the Depositary in order
to enable the Depositary to vote such Stock or cause such Stock to be voted.
In the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting (but, at its discretion, not from appearing
at any meeting with respect to such Stock unless directed to the contrary by
the holders of all the Receipts) to the extent of the Stock
<PAGE> 14
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represented by the Depositary Shares evidenced by such Receipt. The Depositary
shall not be required to exercise discretion in voting any Stock.
Holders of Receipts shall also be entitled to vote on certain
amendments to the Deposit Agreement pursuant to Section 6.01 hereof.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Subject to the provisions of
Section 4.01 hereof, upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of all or substantially all of the Company's assets affecting the Company or to
which it is a party, the Depositary may in its discretion with the approval of,
and shall upon the instructions of, the Company, and (in either case) in such
manner as the Depositary may deem equitable, (i) make such adjustments as are
certified by the Company in the fraction of an interest represented by one
Depositary Share in one share of Stock, as may be necessary fully to reflect
the effects of such change in par or stated value, split-up, combination or
other reclassification of Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation or sale of all or substantially all of
the Company's assets and (ii) treat any securities which shall be received by
the Depositary in exchange for or upon conversion of or in respect of the Stock
as new deposited securities so received in exchange for or upon conversion or
in respect of such Stock. In any such case the Depositary may in its
discretion, with the approval of the Company, execute and deliver additional
Receipts or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited
securities. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of the Stock or any such recapitalization, reorganization, merger, amalgamation
or consolidation or sale of all or substantially all of the Company's assets to
surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Stock represented by such Receipts might have
been converted or for which such Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
SECTION 4.07. Delivery of Reports. The Depositary shall furnish to
holders of Receipts any reports and communications received from the Company
which are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date specified by the Company, of the names, addresses and holdings of
Depositary Shares of all record holders of Receipts.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 31% of
dividends from
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eligible holders of Receipts, (iv) mailing W-9 forms to new holders of Receipts
without a certified taxpayer identification number, (v) processing certified
W-9 forms, (vi) preparation and filing of state information returns and (vii)
escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale or the balance of
any such property after deduction of such taxes to the holders of Receipts
entitled thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
The Depositary, the Depositary's
Agents, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
Depositary shall maintain at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender
and exchange of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, registration of transfer, surrender and
exchange of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at the Depositary's Office which shall
reflect the registration and registration of transfer of Receipts and split-ups
and combinations of Depositary Shares and which books at all reasonable times
shall be open for inspection by the record holders of Receipts; provided that
any such holder requesting to exercise such right shall certify to the
Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books only when the register of
Stockholders of the Company is closed.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or the
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such
<PAGE> 16
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facilities for the delivery, registration, registration of transfer, surrender
and exchange of such Receipts, such Depositary Shares or such Stock as may be
required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of any Receipt if by reason of any provision
of any present or future law, or regulation thereunder, of the United States of
America or of any other applicable governmental authority or, in the case of
the Depositary, the Depositary's Agent or the Registrar, by reason of any
provision, present or future, of the Company's Certificate of Incorporation, as
amended (including the Certificate) or by reason of any act of God or war or
other circumstance beyond the control of the relevant party, the Depositary,
the Depositary's Agent, the Registrar or the Company shall be prevented or
forbidden from, or delayed in, or subjected to any penalty on account of, doing
or performing any act or thing which the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depositary, any Depositary's
Agent, any Registrar or the Company incur liability to any holder of a Receipt
by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement except, in the case of any such exercise or
failure to exercise discretion not caused as aforesaid, if caused by the
negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the advice of legal counsel or accountants, or information from
any person presenting Stock for deposit, any holder of a Receipt or any other
person believed by it in good faith to be authorized or competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and
to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
<PAGE> 17
- 13 -
on the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to
the full indemnification set forth in Section 5.06 hereof in connection with
any action so taken.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Deposit Agreement against the Depositary or any Registrar.
The Depositary, the Depositary's Agents, and any Registrar may own and deal in
any class of securities of the Company and its affiliates and in Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates (including, without limitations, the Stock).
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
If at any time the Depositary acting hereunder shall resign or be
removed prior to the termination of this Deposit Agreement, the Company shall,
within 60 days after the delivery of the notice of resignation or removal, as
the case may be, appoint a successor Depositary, which shall be a bank or trust
company having its principal office in the United States of America and having
a combined capital and surplus of at least $50,000,000. If no successor
Depositary shall have been so appointed and have accepted appointment within 60
days after delivery of such notice, the resigning or removed Depositary may
itself appoint a successor Depositary or petition any court of competent
jurisdiction for the appointment of a successor Depositary. Every successor
Depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor Depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the Depositary under this Deposit Agreement, and
such predecessor, upon payment of all sums due it and on the written request of
the Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts and such
records, books and other information in its
<PAGE> 18
- 14 -
possession relating thereto. Any successor Depositary shall promptly mail
notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof
shall not be required hereunder. Such successor Depositary may authenticate
the Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
it will transmit, at its expense, to the record holders of Receipts, in each
case at the addresses furnished to it pursuant to Section 4.08, all notices and
reports (including without limitation financial statements) required by law or
by the rules of any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed, to be furnished to the record
holders of Receipts.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of acts performed
or omitted in connection with this Deposit Agreement and the Receipts by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons. The obligations of the Company set forth in this Section 5.06 shall
survive any succession of any Depositary, Registrar or Depositary's Agent or
termination of this Deposit Agreement.
SECTION 5.07. Fees and Expenses. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all fees of the Depositary
in connection with the initial deposit of the Stock and the initial issuance of
the Depositary Shares, all withdrawals of shares of the Stock by owners of
Depositary Shares and all other duties performed by it under this Deposit
Agreement. All other transfer and other taxes and governmental charges shall
be at the expense of holders of Depositary Shares. If a holder of Receipts
requests the Depositary to perform duties not required under this Deposit
Agreement, the Depositary shall notify the holder of the cost of this
performance of such duties. Such holder will be liable for the charges and
expenses related to such performance. Except as otherwise provided herein, all
other reasonable fees and expenses of the Depositary and any Depositary's Agent
hereunder and of any Registrar (including, in each case, fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid by the Company (except those expenses which are expressly provided
herein to be paid by such holders of the Depositary Shares). The Depositary
shall present its statement for fees and expenses to the Company once every
three months or at such other intervals as the Company and the Depositary may
agree. The obligations set forth in this Section 5.07 shall survive any
succession of any Depositary, Registrar or
<PAGE> 19
- 15 -
Depositary's Agent or termination of this Deposit Agreement.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any provisions
of this Deposit Agreement may be amended at any time and from time to time by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which (i) shall materially and adversely alter the rights of the holders of
Receipts or (ii) would be materially and adversely inconsistent with the rights
granted to the holders of the Stock pursuant to the Certificate shall be
effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be terminated
by the Company at any time upon not less than 60 days prior written notice to
the Depositary, in which case, upon a date that is not later than 30 days after
the date of such notice, the Depositary shall deliver or make available for
delivery to each record holder, upon surrender of the Receipt or Receipts held
by each record holder, such number of whole or fractional shares of Stock
represented by such Receipt or Receipts. If the record holder of any Receipt
or Receipts shall not have so surrendered such Receipt or Receipts in exchange
for whole or fractional shares of Stock on or prior to the effective date of
termination of this Agreement, such record holder shall for all purposes,
including the payment of dividends, be deemed to be a record holder of the
appropriate number of whole or fractional shares of Stock previously
represented by such Receipt or Receipts and shall thereafter surrender to the
Company such Receipt or Receipts in exchange for whole or fractional shares of
Stock. Upon termination of this Deposit Agreement, the Depositary shall
surrender to the Company any whole or fractional shares of Stock held by the
Depositary and the Company shall hold such Stock for the benefit of the record
holder of Receipts which previously represented such Stock.
This Agreement shall automatically terminate after (i) there shall
have been made a final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts pursuant to Section 4.01
or 4.02, as applicable or (ii) each share of Stock shall have been exchanged
for cash in a cash-out merger transaction.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
<PAGE> 20
- 16 -
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
is for the exclusive benefit of the parties hereto, including the holders of
the Receipts, and their respective successors hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other
person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram
or facsimile transmission confirmed by letter, addressed to the Company at
Ford Holdings, Inc.
The American Road
Dearborn, Michigan 48121
Attention: Secretary
Telephone No.: (313) 323-2260
Facsimile No.: (313) 337-9591
or at any other address of which the Company shall have notified the Depositary
in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or facsimile transmission
confirmed by letter, addressed to the Depositary at the Depositary's Office, at
____________________________, Attention: ____________, or at any other address
of which the Depositary shall have notified the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission confirmed by letter, addressed to such record holder at
the address of such record holder as it appears on the books of the Depositary
or, if such holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address, at the
address
<PAGE> 21
- 17 -
designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a telegram
or facsimile transmission) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram
or facsimile transmission received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or facsimile transmission shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts and the Depositary hereby accepts
such appointments.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Deposit Agreement and shall
be bound by and be entitled to the benefit of all of the terms and conditions
hereof and of the Receipts by acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 7.08. Inspection of Deposit Agreement and Certificate.
Copies of this Deposit Agreement and the Certificate shall be filed with the
Depositary and the Depositary's Agents and shall be open to inspection during
business hours at the Depositary's Office and the respective offices of the
Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Deposit Agreement have been inserted for convenience only and are not to
be regarded as a part of this Deposit Agreement or to have any bearing upon the
meaning or interpretation of any provision contained herein.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
<PAGE> 22
- 18 -
[SEAL] FORD HOLDINGS, INC.
Attested by
________________________________ By: _____________________________
Title: Assistant Treasurer
[SEAL] [NAME OF DEPOSITARY]
Attested by
________________________________ By: _____________________________
Title:
<PAGE> 23
EXHIBIT A
[FORM OF FACE OF DEPOSITARY RECEIPT]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING 1/____ OF A SHARE OF
___________________ PREFERRED STOCK,
PAR VALUE $1.00 PER SHARE
FORD HOLDINGS, INC.
Incorporated under the Laws of the State of Delaware
This Certificate is Transferable in New York
See Reverse for Certain Definitions
CUSIP __________
CERTIFICATE NUMBER SHARES
_____________, a ___________ duly organized and existing under the
laws of ____________________, as Depositary (the "Depositary"), hereby
certifies that _______________ is the registered owner of __________ Depositary
Shares ("Depositary Shares"), each Depositary Share representing one
_______________ (1/____) of a share of ___________________ Preferred Stock, par
value $1.00 per share (the "Stock") of Ford Holdings, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company").
Subject to the terms of a Deposit Agreement (the "Deposit Agreement") among the
Depositary, the Company and holders of receipts for Depositary Shares
("Receipts"), each owner of a Depositary Share is entitled, proportionately, to
all the powers, preferences and rights and the qualifications, limitations or
restrictions of such powers, preferences and/or rights of the Stock represented
thereby, including dividends, voting and liquidation rights as set forth in the
Certificate of Incorporation of the Company as amended and supplemented by the
Certificate of Designations (the "Certificate of Designations") fixing the
terms of the Stock filed with the Secretary of State of the State of Delaware.
The Company will furnish without charge to any registered owner of
Depositary Shares who so requests, copies of the Certificate of Incorporation
of the Company, Deposit Agreement and Certificate of Designations.
This Receipt shall not be valid or obligatory for any purpose, nor
shall the holder be entitled to any benefits under the Deposit Agreement,
unless this Receipt shall have been executed manually, or, if a Registrar for
the Receipts (other than the Depositary) shall have been appointed, by manual
or facsimile signature by the Depositary of a duly authorized officer thereof
and, if executed by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by signature of a duly authorized
officer thereof.
Dated:__________________ [NAME OF DEPOSITARY]
Depositary and Registrar
Authorized Officer
<PAGE> 24
- 2 -
[FORM OF REVERSE OF DEPOSITARY RECEIPT]
The Company will furnish without charge to any registered owner of
Depositary Shares who so requests, copies of the Certificate of Incorporation
of the Company, Deposit Agreement and Certificate of Designations. Any such
request should be addressed to the Secretary of Ford Holdings, Inc., The
American Road, Dearborn, MI 48121 or to the Depositary named on the face of
this Receipt.
The following abbreviations, when used in the inscription on the face
of this Receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--______Custodian_______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right under Uniform Gifts to
of survivorship and not as Minors Act____________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, ____________________________ the
undersigned, hereby sells, assigns and transfers unto _________________________
______________________________________ (Please insert social security or other
identifying number of Assignee _______________) the within Receipt and all
rights and interests represented by the Depositary Shares evidenced thereby,
and hereby irrevocably constitutes and appoints _______________ his attorney, to
transfer the said Depositary Shares on the books of the within-named
Depositary, with full power of substitution in the premises.
Dated:________________________ Signature________________________________
Note: The signature to this Assignment
must correspond with the name as written upon
the face of this Receipt in every particular,
without alteration or enlargement or any
change whatever.
<PAGE> 1
EXHIBIT 5
[FORD HOLDINGS LETTERHEAD]
December 6, 1994
Ford Holdings, Inc.
The American Road
Dearborn, Michigan 48121
Dear Sirs:
This will refer to the Registration Statement on Form S-3 (the
"Registration Statement"), being filed by Ford Holdings, Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Act of 1933, as amended (the "Act"),
with respect to the proposed sale by the Company of up to 5,000 shares of its
preferred stock (the "Preferred Stock") and of depositary shares, the number of
which has not yet been determined, representing fractional interests in shares
of the Preferred Stock (the "Depositary Shares"), to be evidenced by depositary
receipts relating to the Depositary Shares (the "Depositary Receipts") issued
pursuant to a Deposit Agreement among the Company, a depositary (the
"Depositary") and the holders from time to time of the Depositary Receipts (the
"Deposit Agreement").
As the Secretary of the Company and an Assistant General Counsel of
Ford Motor Company, I have acted as counsel to the Company in connection with
the Registration Statement and am familiar with the Certificate of
Incorporation and the By-Laws and with the affairs of the Company. I have
examined, or caused to be examined, (i) a form of the Certificate of
Designations relating to the Preferred Stock, the final terms of which I have
assumed will be approved by the board of directors of the Company or a duly
authorized committee thereof, (ii) a form of the Deposit Agreement and (iii) a
copy of the Registration Statement. I also have examined, or caused to be
examined, such other documents and instruments and have made, or caused to be
made, such further investigation as I have deemed necessary in connection with
this opinion.
Based upon the foregoing, it is my opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
<PAGE> 2
-2-
2. When (a) the registration requirements of the Act and such state
Blue Sky or securities laws as may be applicable have been complied with, (b)
the form or forms of the Preferred Stock and, if applicable, the Depositary
Shares and the final terms thereof have been duly approved or established by
the Company, (c) the shares of Preferred Stock and, if applicable, the
Depositary Shares have been duly issued and sold in the manner contemplated by
the Registration Statement, and (d) with respect to the Depositary Shares only,
if applicable, the Depositary has duly executed the Depositary Receipts in
accordance with the terms of the Deposit Agreement (the Company having
deposited the Preferred Stock with the Depositary pursuant to the Deposit
Agreement), such shares of Preferred Stock will be validly issued, fully paid
and nonassessable, will not have been issued in violation of or subject to any
preemptive rights, and will have the rights set forth in the Company's
Certificate of Incorporation, as then amended, including the amendment effected
by the Certificate of Designations with respect to the particular series of
Preferred Stock and, if applicable, such Depositary Shares will represent legal
and valid interests in the shares of Preferred Stock.
In connection with the foregoing opinion, I wish to point out that I am
a member of the Bar of the State of Michigan and do not hold myself out as
expert in the laws of states other than Michigan. However, I have made, or
caused to be made, such investigation as I have deemed appropriate with respect
to the laws of other states in connection with such opinion, and nothing has
come to my attention in the course of such investigation which would lead me to
question the correctness of such opinion.
I hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, I do not admit that I am in
the category of persons whose consent is required under Section 7 of the Act of
the rules and regulations of the Commission issued thereunder.
Very truly yours,
/s/ John M. Rintamaki
---------------------
John M. Rintamaki
Secretary
<PAGE> 1
Exhibit 12
Ford Holdings, Inc. and Subsidiaries
CALCULATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
------------------------------------------------------------------------------
(in millions)
<TABLE>
<CAPTION>
Nine Months
-----------------------
1994 1993
------- -------
<S> <C> <C>
Earnings (a)
- --------
Income before income taxes $ 685 $ 599
Adjusted fixed charges 1,580 1,405
------ ------
Total earnings $2,265 $2,004
====== ======
Combined Fixed Charges and
Preferred Stock Dividends (a)
- --------------------------
Interest expense $1,527 $1,359
Interest portion of rental expense 19 18
Preferred stock dividend requirements (b) 110 88
------ ------
Total combined fixed charges and
preferred stock dividends $1,656 $1,465
====== ======
Ratio of earnings to combined fixed
charges and preferred stock dividends 1.4 1.4
</TABLE>
(a) For purposes of computing the ratio of earnings to combined
fixed charges and preferred stock dividends, "earnings"
include earnings before income taxes plus adjusted fixed
charges. "Combined fixed charges and preferred stock
dividends" consist of interest on borrowed funds,
amortization of debt discount, premium, and issuance
expense, one-third of all rental expense (the portion deemed
representative of the interest factor) and dividends paid on
preferred stock.
(b) Preferred stock dividend requirements have been increased to
an amount representing the pre-tax earnings which would be
required to cover such dividend requirements based on Ford
Holdings' effective income tax rates for the respective
periods.
<PAGE> 1
[COOPERS & LYBRAND LETTERHEAD]
EXHIBIT 15
Ford Holdings, Inc.
The American Road
Dearborn, Michigan
Re: Ford Holdings, Inc. Registration Statement on Form S-3
We are aware that our reports dated April 27, 1994, July 27, 1994 and October
26, 1994 accompanying the unaudited interim financial information of Ford
Holdings, Inc. for the periods ended March 31, 1994 and 1993, for the periods
ended June 30, 1994 and 1993 and for the periods ended September 30, 1994 and
1993 and included in Ford Holdings, Inc.'s Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1994, June 30, 1994 and September 30, 1994,
respectively, are incorporated by reference in this Registration Statement.
Pursuant to Rule 436(c) under the Securities Act of 1933, these reports should
not be considered a part of the Registration Statement prepared or certified by
us within the meaning of Sections 7 and 11 of the Act.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
December 5, 1994
<PAGE> 1
[COOPERS & LYBRAND LETTERHEAD]
EXHIBIT 23.2
Ford Holdings, Inc.
The American Road
Dearborn, Michigan
CONSENT OF COOPERS & LYBRAND L.L.P.
Re: Ford Holdings, Inc. Registration Statement on Form S-3
We consent to the incorporation by reference in this Registration Statement of
our reports dated February 1, 1994 on our audits of the consolidated financial
statements and financial statement schedules of Ford Holdings, Inc. at December
31, 1993 and 1992, and for the years ended December 31, 1993, 1992 and 1991,
which reports are included in, or incorporated by reference in, Ford Holdings,
Inc.'s Annual Report on Form 10-K for the year ended December 31, 1993.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
December 5, 1994
<PAGE> 1
EXHIBIT 24
FORD HOLDINGS, INC.
CERTIFICATE OF AN ASSISTANT SECRETARY
The undersigned, P. J. Sherry, Jr., an Assistant Secretary of FORD
HOLDINGS, INC., a Delaware corporation (the "Company"), DOES HEREBY CERTIFY
THAT the resolutions attached as Exhibit A hereto are true and correct copies
of resolutions excerpted from the minutes of proceedings of the Board of
Directors of the Company; such resolutions were duly adopted by unanimous
written consent of the Board of Directors of the Company, dated as of August
18, 1994, pursuant to Section 141(f) of the General Corporation Law of the
State of Delaware; and such resolutions are in full force and effect on the
date hereof.
WITNESS my hand and the seal of the Company this 5th day of December,
1994.
/s/ P. J. Sherry, Jr.
________________________
P. J. Sherry, Jr.
Assistant Secretary
(Corporate Seal)
<PAGE> 2
EXHIBIT A
EXCERPTS OF RESOLUTIONS ADOPTED BY
THE BOARD OF DIRECTORS OF FORD HOLDINGS, INC.
BY UNANIMOUS WRITTEN CONSENT
PURSUANT TO SECTION 141(F) OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
RESOLUTIONS RELATING TO ISSUANCE OF PREFERRED STOCK
RESOLVED, That the proposed form of Certificate of the Designations,
Powers, Preferences and Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions thereof, of Preferred Stock of the
Company, par value $1.00 per share ("Preferred Stock"), a copy of which is
available for examination at this meeting (the "Certificate of Designations"),
creating and establishing one or more series of Preferred Stock to be filed
with the Secretary of State of the State of Delaware, be and hereby is approved
in all respects, and that the resolutions set forth therein be and hereby are
adopted and approved as if fully set forth herein.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Company, and each of them, be and hereby are
authorized and directed, in the name and on behalf of the Company, to prepare,
execute and cause to be filed, prior to the issuance of any shares of Preferred
Stock, with the Secretary of State of the State of Delaware and any other
appropriate governmental agency or office, the Certificate of Designations
designating such shares of Preferred Stock and describing the terms and
provisions thereof, in such form and with such changes or additions to such
terms and provisions as the Certificate of Designations Committee, referred to
below, may approve.
RESOLVED, That the Company be and hereby is authorized to issue and
sell, in one or more public or private offerings within and/or outside the
United States, up to eighty-two thousand eight hundred ninety-nine and one-half
(82,899.5) shares of Preferred Stock with an aggregate liquidation preference
not to exceed $1,000,000,000 and any Depositary Shares or receipts for such
Depositary Shares (the "Depositary Shares"), each representing a fractional
interest of a share of Preferred Stock, in such amount and at such purchase
price or prices (including a price determined pursuant to a formula) and upon
such additional terms and conditions, as may be fixed by the Certificate of
Designations Committee referred to below; provided, however, that each share of
Preferred Stock shall have a purchase price of not less than $1.00 per share
and each Depositary Share shall have a purchase price of not less than an
amount per share equal to $1.00 multiplied by the applicable fraction of a
share of
<PAGE> 3
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Preferred Stock represented by such Depositary Share; provided, further, that
the number of shares of Preferred Stock issued pursuant to these resolutions,
when combined with the number of shares of any other preferred stock of the
Company then issued and outstanding shall not exceed one hundred thousand
(100,000).
RESOLVED, That the Company be and hereby is authorized to issue and/or
sell, in one or more public or private offerings within and/or outside the
United States, purchase contracts ("Preferred Stock Purchase Contracts") which
permit, require or otherwise allow the holder or holders thereof to purchase up
to eighty-two thousand eight hundred ninety-nine and one-half (82,899.5) shares
of Preferred Stock with an aggregate liquidation preference not to exceed
$1,000,000,000 and/or any Depositary Shares, such Preferred Stock Purchase
Contracts to be in such amount and at such purchase price or prices (including
a price determined pursuant to a formula) and upon such additional terms and
conditions, as may be fixed by the Certificate of Designations Committee
referred to below.
RESOLVED, That the Company be and hereby is authorized to issue and/or
sell Preferred Stock Purchase Contracts separately or in conjunction with the
issue and sale of debt or other securities of the Company or an affiliate of
the Company (Preferred Stock Purchase Contracts together with other securities
issued and/or sold in conjunction therewith are referred to herein as the
"Capital Units").
RESOLVED, That the Company be and hereby is authorized to register with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act"), (i) up to eighty-two thousand
eight hundred ninety-nine and one-half (82,899.5) shares of Preferred Stock and
any Depositary Shares, (ii) Preferred Stock Purchase Contracts covering a total
of eighty-two thousand eight hundred ninety-nine and one-half (82,899.5) shares
of Preferred Stock and any Depositary Shares, and (iii) the Capital Units (such
Preferred Stock, Depositary Shares, if any, Preferred Stock Purchase Contracts,
if any, and Capital Units, if any, being collectively referred to herein as the
"Equity Securities").
RESOLVED, That there is hereby established as a committee of the Board
of Directors of the Company the Certificate of Designations Committee, such
committee to have the full power and authority of the Board of Directors to (A)
establish the terms of the sale of the Equity Securities and the final terms of
the Certificate of Designations creating and establishing the Preferred Stock,
including, without limitation (i) the purchase price or method of determining
the purchase price (including a price determined pursuant to a formula), not
less than $1.00 per
<PAGE> 4
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share (in the case of the Preferred Stock) and not less than an amount per
share equal to $1.00 multiplied by the applicable fraction of a share of
Preferred Stock represented by each Depositary Share (in the case of any
Depositary Shares), to be paid by any underwriters or any firm, institution,
partnership or other person purchasing the Equity Securities from the Company,
(ii) the dividend rate or rates or the method of determining the dividend rate
or rates (including dividend rates determined pursuant to a formula) and (iii)
any terms for conversion or exchange into other securities of the Company or
another person, and (B) to approve of such changes or additions to such terms
and provisions of the Certificate of Designations as the Certificate of
Designations Committee may deem appropriate and to effect or cause the filing
thereof with the Secretary of State of the State of Delaware and any other
appropriate governmental agency or office; provided, however, that the
Certificate of Designations Committee shall have no authority to fix the voting
powers of the Preferred Stock.
RESOLVED, That the Certificate of Designations Committee shall consist
of two Directors of the Company; that said two Directors shall constitute a
quorum for the transaction of business by such committee; that Malcolm S.
Macdonald and David N. McCammon be and hereby are designated to serve as
members of such committee until their successors shall have been designated and
have qualified, or as otherwise provided in the By-Laws of the Company; and
that any one or two, as the case may be, of the other Directors of the Company
be and hereby are designated as alternate committee members to serve in the
event that Malcolm S. Macdonald and David N. McCammon, or either of them,
should be unable or fail to serve.
RESOLVED, That the preparation by the Company of a Registration
Statement on Form S-3 or such other form as may be appropriate covering the
Equity Securities, including prospectuses, exhibits and other documents, to be
filed with the Commission for the purpose of registering the offer and sale of
the Equity Securities, be and hereby is in all respects approved; that the
directors and appropriate officers of the Company, and each of them, be and
hereby are authorized to sign and execute in their own behalf, or in the name
and on behalf of the Company, or both, as the case may be, any such
Registration Statement, with such changes, if any, therein, including
amendments to the prospectus and the addition or amendment of exhibits and
other documents relating thereto or required by law or regulation in connection
therewith, all in such form as such directors and officers may deem necessary,
appropriate or desirable, as conclusively evidenced by their execution thereof,
and that the appropriate officers of the Company, and each of them, be and
hereby are authorized to cause any such Registration Statement,
<PAGE> 5
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so executed, to be filed with the Commission; and, prior to the effective date
of any such Registration Statement, and if the Vice President - General Counsel
or the Secretary deems it advisable, the appropriate officers of the Company
are directed to use their best efforts to furnish each director and each
officer signing such Registration Statement with a copy of such Registration
Statement, and if, prior to the effective date of any such Registration
Statement, material changes therein or material additions thereto are proposed
to be made, other than changes and additions of a type authorized under these
resolutions to be approved by officers of the Company as provided in these
resolutions, and if the Vice President - General Counsel or the Secretary deems
it advisable, the appropriate officers of the Company are directed to use their
best efforts to furnish each director, and each officer signing any such
Registration Statement, with a copy of such Registration Statement and each
amendment thereto as filed with the Commission, or a description of such
changes or additions, or a combination thereof, in as complete and final form
as practicable and in sufficient time to permit each director and each such
officer so desiring to object to any part of any such Registration Statement
before it becomes effective.
RESOLVED, That the directors and appropriate officers of the Company,
and each of them, be and hereby are authorized to sign and execute in their own
behalf, or in the name and on behalf of the Company, or both, as the case may
be, any and all amendments (including post-effective amendments) to any
Registration Statement, including amendments to the prospectus and the addition
or amendment of exhibits and other documents relating thereto or required by
law or regulation in connection therewith, all in such form, with such changes,
if any, therein, as such directors and officers may deem necessary, appropriate
or desirable, as conclusively evidenced by their execution thereof, and that
the appropriate officers of the Company, and each of them, be and hereby are
authorized to cause such amendment or amendments, so executed, to be filed with
the Commission; and if, prior to the effective date of each such post-effective
amendment, material changes or material additions are proposed to be made in or
to any such Registration Statement or any amendment thereto in the form in
which it most recently became effective, other than changes and additions of a
type authorized under these resolutions to be approved by officers of the
Company, and if the Vice President - General Counsel or the Secretary deems it
advisable,the appropriate officers of the Company are directed to use their
best efforts to furnish each director, and each officer signing such
post-effective amendment, with a copy of such post-effective amendment or a
description of all material changes or additions therein, or a combination
thereof, in as complete and final form as practicable and in sufficient time to
permit
<PAGE> 6
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each director and each such officer so desiring to object to any part of such
post-effective amendment before it becomes effective.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized to
execute and file with the Commission and the New York Stock Exchange, Inc., for
and on behalf of the Company, a Registration Statement, on Form 8-A or such
other form as may be appropriate, including any and all exhibits and other
documents relating thereto, for the registration under the Securities Exchange
Act of 1934, as amended, of the Depositary Shares, the Preferred Stock Purchase
Contracts, the Capital Units and/or the Preferred Stock, and any and all
amendments to such Registration Statement, in such form as the person or
persons executing the same may deem necessary, appropriate or desirable, as
conclusively evidenced by his or their execution thereof.
RESOLVED, That each officer and director who may be required to sign
and execute any of the Registration Statements authorized by these resolutions
or any amendment thereto or document in connection therewith (whether on behalf
of the Company, or as an officer or director of the Company, or otherwise), be
and hereby is authorized to execute a power of attorney appointing S. A.
Seneker, D. N. McCammon, M. S. Macdonald, J. W. Martin, Jr., F. B. Kulp, J. M.
Rintamaki, T. J. DeZure, L. J. Ghilardi, P. M. Donnelly, K. S. Lamping and P.
J. Sherry, Jr., and each of them, severally, his or her true and lawful
attorney or attorneys to sign in his or her name, place and stead in any such
capacity any such Registration Statement and any and all amendments (including
post-effective amendments) thereto and documents in connection therewith, and
to file the same with the Commission, each of said attorneys to have power to
act with or without the other, and to have full power and authority to do and
perform, in the name and on behalf of each of said officers and directors who
shall have executed such a power of attorney, every act whatsoever which such
attorneys, or any of them, may deem necessary, appropriate or desirable to be
done in connection therewith as fully and to all intents and purposes as such
officers or directors might or could do in person.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized in the
name and on behalf of the Company to take any and all action which such
persons, or any of them, may deem necessary, appropriate or desirable in order
to obtain a permit, register or qualify the Equity Securities for
<PAGE> 7
- 6 -
issuance and sale or to request an exemption from registration of the Equity
Securities or to register or obtain a license for the Company as a dealer or
broker under the securities laws of such of the states of the United States of
America as such persons, or any of them, may deem necessary, appropriate or
desirable, and in connection with such registrations, permits, licenses,
qualifications and exemptions to execute, acknowledge, verify, deliver, file
and publish all such applications, reports, resolutions, irrevocable consents
to service of process, powers of attorney and other papers and instruments as
may be required under such laws, and to take any and all further action which
such persons, or any of them, may deem necessary, appropriate or desirable in
order to maintain such registrations in effect for as long as such persons, or
any of them, may deem to be in the best interests of the Company.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized to
designate any licensed California broker-dealer as the Company's
attorney-in-fact for the purpose of executing and filing one or more
applications and amendments thereto on behalf of the Company, under applicable
provisions of the California Corporate Securities Law of 1968, for the
registration or qualification of part or all of the Equity Securities for
offering and sale in the State of California.
RESOLVED, That any and all haec verba resolutions which may be required
by the Blue Sky or securities laws of any state in which the Company intends to
offer to sell the Equity Securities be, and they hereby are, adopted; that the
proper officers of the Company be, and they hereby are, authorized to certify
that such resolutions were duly adopted at this meeting; and that the Secretary
of the Company shall cause a copy of each resolution so certified to be
attached to the minutes of this meeting.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized, in the name and on behalf of the Company,
to take such action as such officers, or any of them, may deem necessary,
appropriate or desirable to make application for the listing of the Equity
Securities on the New York Stock Exchange or any other Stock Exchange, and that
the Chairman of the Board of Directors, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer and any Assistant Treasurer,
and each of them, be and hereby are designated a representative of the Company
to appear before the Corporate Services Division or other appropriate body of
any such Exchange and take all such other steps as such persons, or any of
<PAGE> 8
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them, may deem necessary, appropriate or desirable to effect such listing.
RESOLVED, That, in connection with each application of the Company to
the New York Stock Exchange, Inc. or any other Stock Exchange, for the listing
on such Exchange of the Equity Securities, the Company enter into an agreement
providing for the indemnification by the Company of such Exchange, its
governors, officers, employees and its subsidiary companies and innocent
purchasers for value of the Equity Securities or any one or more of them, as
the case may be, from and against losses, liabilities, claims, damages or
accidents in connection with the use of facsimile signatures on certificates
representing the Equity Securities; and that the Chairman of the Board of
Directors, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be and
hereby are authorized in the name and on behalf of the Company and under its
corporate seal to execute and deliver to such Exchange, the aforesaid
indemnification agreement in such form as the person or persons executing the
same may deem necessary, appropriate or desirable, as conclusively evidenced by
his, her or their execution thereof.
RESOLVED, That the Board of Directors hereby adopts the forms of
certificates for the Depositary Shares and the Preferred Stock, specimens of
which will be available for examination at the principal office of the Company,
such forms of certificates to have such changes as the appropriate officers of
the Company may approve.
RESOLVED, That the Chairman of the Board of Directors, the President or
any Vice President, and the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary, be and hereby are authorized, in the name and on
behalf of the Company and under its corporate seal (which may be a facsimile of
such seal), to execute (by manual or facsimile signature) certificates
representing the Equity Securities (and, in addition, certificates representing
the Equity Securities to replace any such certificates which are lost, stolen,
mutilated or destroyed and such certificates required for exchange,
substitution or transfer), all as provided in the Certificate of Incorporation
and By-Laws of the Company.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized to
appoint one or more paying agents, registrars, issuing agents, transfer agents,
and other agents and functionaries to, among other things, issue or
countersign, make transfers of, register the certificates
<PAGE> 9
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representing the Equity Securities, or implement or act in connection with any
auction or remarketing procedures applicable to the Equity Securities, and that
any such officer be and hereby is authorized to execute and deliver, in the
name and on behalf of the Company, any agreement, instrument or document
relating to any such appointment; provided, however, that the Company may at
any time elect to act in any such capacity itself.
RESOLVED, That, subject to the right of the Board of Directors to
rescind or modify the dividends to be declared and payable on any dividend
payment date with respect to any shares of Preferred Stock, the dividend rate
of which is determined pursuant to a formula or procedure ("Variable
Preferred"), there shall be deemed to be declared, and be declared, with
respect to each dividend period thereof (any such declaration to be effective
on the declaration date applicable to such dividend period, without further
action of the Board of Directors), a dividend on each of the outstanding shares
of Variable Preferred to which such dividend period relates at the dividend
rate per annum (as determined in accordance with the Certificate of
Designations) that may be payable with respect to such shares, payable on the
dividend payment date for such dividend period to the holders of such shares of
Variable Preferred as such holders appear on the stock transfer books of the
Company on the related record date, all determined in accordance with the
Certificate of Designations; provided that any such declaration shall not be
effective with respect to any dividend on any such dividend payment date,
unless the Vice President-Controller, Vice President-Treasurer or any Assistant
Treasurer of the Company shall have prepared and delivered to the Secretary of
the Company for filing in the minutes of the Board of Directors, on or before
the declaration date with respect to such dividend period, a certificate in
which such officer certifies that, based upon the most recent financial
statements of the Company, as of such declaration date, the Company had either
(i) net profits for the calendar year in which such declaration date falls
and/or the preceding calendar year or (ii) surplus (as defined and computed
under Sections 154 and 244 of the Delaware General Corporation Law) in an
amount sufficient to pay such dividend.
RESOLVED, That the Company be and hereby is authorized to enter into
one or more deposit agreements and one or more supplements thereto, each with a
bank or trust company as depositary ("Deposit Agreements"), providing for the
deposit of the Preferred Stock Purchase Contracts, the Capital Units and/or the
Preferred Stock, the issuance of the Depositary Shares and other matters
relating thereto, and that the Chairman of the Board of Directors, the
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer and any Assistant Treasurer, and each of them, be and hereby are
<PAGE> 10
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authorized, in the name and on behalf of the Company, (i) to select such
depositary or depositaries and (ii) to execute, acknowledge and deliver Deposit
Agreements and supplements thereto, whether or not under the seal of the
Company, and whether or not attested by the Secretary or any Assistant
Secretary, containing such terms and provisions as the officer or officers
executing such Deposit Agreements or supplements thereto may deem necessary,
appropriate or desirable, as conclusively evidenced by his, her or their
execution thereof.
RESOLVED, That the Company be and hereby is authorized to enter into
one or more agreements and one or more supplements thereto, each with a bank or
trust company ("Unit Agent Agreements"), providing for the administration on
behalf of the Company of the Capital Units and/or the Preferred Stock Purchase
Contracts, including, but not limited to, issuing Capital Units, acting as a
paying and/or fiscal agent in respect of debt securities, if any, which may be
part of the Capital Units, collecting amounts from and issuing Preferred Stock
and/or Depositary Shares to holders of Preferred Stock Purchase Contracts in
accordance with the terms thereof and other matters relating to the Capital
Units and/or the Preferred Stock Purchase Contracts, and that the Chairman of
the Board of Directors, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer and any Assistant Treasurer, and each of
them, be and hereby are authorized, in the name and on behalf of the Company,
(i) to select such bank or trust company and (ii) to execute, acknowledge and
deliver Unit Agent Agreements and supplements thereto, whether or not under the
seal of the Company, and whether or not attested by the Secretary or any
Assistant Secretary, containing such terms and provisions as the officer or
officers executing such Unit Agent Agreements or supplements thereto may deem
necessary, appropriate or desirable, as conclusively evidenced by his, her or
their execution thereof.
RESOLVED, That the Company be and hereby is authorized to enter into
one or more (i) underwriting agreements, including pricing agreements pursuant
thereto, with any underwriter or underwriters designated by the proper officers
of the Company, or between the Company and any other persons, including
securities brokers and dealers, or any firm, institution or partnership acting
on behalf of themselves or itself and the several underwriters (such
underwriting agreements being herein collectively called the "Underwriting
Agreements"), providing for the sale of the Preferred Stock Purchase Contracts,
the Capital Units, the Preferred Stock and/or the Depositary Shares and/or (ii)
purchase agreements or other agreements with any person ("Purchase
Agreements"), providing for the purchase for its own account or for resale of
the Preferred Stock Purchase Contracts, the Capital Units, the Preferred Stock
and/or the Depositary
<PAGE> 11
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Shares, and that, when such Underwriting Agreements or pricing agreements
pursuant thereto, or Purchase Agreements, or any of them, have been completed
to set forth the price or prices, or the method of determining the price or
prices, at and the terms and conditions upon which the Preferred Stock Purchase
Contracts, the Capital Units, the Preferred Stock and/or the Depositary Shares
are to be sold and the compensation to be received by any underwriters (such
matters first having been presented to and approved by the Certificate of
Designations Committee), the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized to
execute and deliver, in the name and on behalf of the Company, the respective
Underwriting Agreements and pricing agreements pursuant thereto, with the
inclusion of such underwriters, or the respective Purchase Agreements and
containing such other terms and provisions as the officer or officers executing
the same may deem necessary, appropriate or desirable, as conclusively
evidenced by his, her or their execution thereof.
RESOLVED, That, when shares of Preferred Stock and, if such shares of
Preferred Stock are represented by Depositary Shares, the Depositary Shares
shall be issued, sold and delivered in accordance with the terms of any
Preferred Stock Purchase Contract, Capital Unit, Deposit Agreement and any
Underwriting Agreement or Purchase Agreement, such shares of Preferred Stock
shall be, and are hereby declared to be, fully-paid and non-assessable shares
of Preferred Stock of the Company and not liable to any further calls or
assessments thereon, and the holders thereof shall not be liable for any
further payment in respect thereof.
RESOLVED, That, upon the issuance and sale of the Preferred Stock and
any Depositary Shares in accordance with the foregoing resolutions, an amount
equal to the par value of the Preferred Stock so issued shall be credited to
the capital stock account of the Company.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized and empowered, in the name and on behalf of
the Company, to take any action (including, without limitation, the appointment
of agents and the payment of expenses), and to execute (by manual or facsimile
signature) and deliver any and all letters, documents or other writings, that
such officer or officers may deem necessary, appropriate or desirable in order
to enable the Company fully to exercise its rights and to perform its
obligations under the Underwriting Agreements and pricing agreements pursuant
thereto, Purchase Agreements or Deposit Agreements or otherwise carry out the
<PAGE> 12
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purposes and intents of each and all of the foregoing resolutions.
<PAGE> 13
POWER OF ATTORNEY WITH RESPECT
TO REGISTRATION STATEMENT COVERING
DEBT SECURITIES, PREFERRED STOCK AND
DEPOSITARY SHARES OF FORD HOLDINGS, INC.
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned, an officer
and/or director of FORD HOLDINGS, INC., does hereby constitute and appoint D.
N. McCammon, M. S. Macdonald, J. W. Martin, Jr., F. B. Kulp, J. M. Rintamaki,
L. J. Ghilardi, T. J. DeZure, P. J. Sherry, Jr., and K. S. Lamping, and each of
them, severally, his or her true and lawful attorney and agent at any time and
from time to time to do any and all acts and things and execute, in his or her
name (whether on behalf of FORD HOLDINGS, INC., or as an officer or director of
FORD HOLDINGS, INC., or by attesting the seal of FORD HOLDINGS, INC., or
otherwise), any and all instruments which said attorney and agent may deem
necessary or advisable in order to enable FORD HOLDINGS, INC. to comply with
the Securities Act of 1933, the Securities Exchange Act of 1934 and any
requirements of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement or Registration Statements and any and
all amendments (including post-effective amendments) to the Registration
Statement or Registration Statements relating to the issuance and sale of Debt
Securities, Preferred Stock and any Depositary Shares representing such
Preferred Stock, Preferred Stock Purchase Contracts and/or Capital Units of the
Company, as authorized by the Board of Directors of FORD HOLDINGS, INC. by
unanimous written consents dated February 12, 1992 and August 18, 1994,
including specifically but without limitation thereto, power and authority to
sign his or her name (whether on behalf of FORD HOLDINGS, INC., or as an
officer or director of FORD HOLDINGS, INC., or by attesting the seal of FORD
HOLDINGS, INC., or otherwise) to such Registration Statement or Registration
Statements and to such amendments (including post-effective amendments) to the
Registration Statement or Registration Statements to be filed with the
Securities and Exchange Commission, or any of the exhibits, financial
statements and schedules, or the Prospectuses, filed therewith, and to file the
same with the Securities and Exchange Commission; and each of the undersigned
does hereby ratify and confirm all that said attorneys and agents, and each of
them, shall do or cause to be done by virtue hereof. Any one of said attorneys
and agents shall have, and may exercise, all the powers hereby conferred.
IN WITNESS WHEREOF, each of the undersigned has signed his or her name
hereto as of the 28th day of September, 1994.
\s\J. M. Devine \s\E. S. Acton
___________________ _______________________
(J. M. Devine) (E. S. Acton)
<PAGE> 14
POWER OF ATTORNEY WITH RESPECT
TO REGISTRATION STATEMENT COVERING
DEBT SECURITIES, PREFERRED STOCK AND
DEPOSITARY SHARES OF FORD HOLDINGS, INC.
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned, an officer
and/or director of FORD HOLDINGS, INC., does hereby constitute and appoint D.
N. McCammon, M. S. Macdonald, J. W. Martin, Jr., F. B. Kulp, J. M. Rintamaki,
L. J. Ghilardi, T. J. DeZure, P. J. Sherry, Jr., and K. S. Lamping, and each of
them, severally, his or her true and lawful attorney and agent at any time and
from time to time to do any and all acts and things and execute, in his or her
name (whether on behalf of FORD HOLDINGS, INC., or as an officer or director of
FORD HOLDINGS, INC., or by attesting the seal of FORD HOLDINGS, INC., or
otherwise), any and all instruments which said attorney and agent may deem
necessary or advisable in order to enable FORD HOLDINGS, INC. to comply with
the Securities Act of 1933, the Securities Exchange Act of 1934 and any
requirements of the Securities and Exchange Commission in respect thereof, in
connection with a Registration Statement or Registration Statements and any and
all amendments (including post-effective amendments) to the Registration
Statement or Registration Statements relating to the issuance and sale of Debt
Securities, Preferred Stock and any Depositary Shares representing such
Preferred Stock, Preferred Stock Purchase Contracts and/or Capital Units of the
Company, as authorized by the Board of Directors of FORD HOLDINGS, INC. by
unanimous written consents dated February 12, 1992 and August 18, 1994,
including specifically but without limitation thereto, power and authority to
sign his or her name (whether on behalf of FORD HOLDINGS, INC., or as an
officer or director of FORD HOLDINGS, INC., or by attesting the seal of FORD
HOLDINGS, INC., or otherwise) to such Registration Statement or Registration
Statements and to such amendments (including post-effective amendments) to the
Registration Statement or Registration Statements to be filed with the
Securities and Exchange Commission, or any of the exhibits, financial
statements and schedules, or the Prospectuses, filed therewith, and to file the
same with the Securities and Exchange Commission; and each of the undersigned
does hereby ratify and confirm all that said attorneys and agents, and each of
them, shall do or cause to be done by virtue hereof. Any one of said attorneys
and agents shall have, and may exercise, all the powers hereby conferred.
IN WITNESS WHEREOF, the undersigned has signed his name hereto as of
the 22nd day of November, 1994.
\s\E. A. Law
______________________
(E. A. Law)
<PAGE> 15
POWER OF ATTORNEY WITH RESPECT
TO REGISTRATION STATEMENT COVERING
DEBT SECURITIES, PREFERRED STOCK AND
DEPOSITARY SHARES OF FORD HOLDINGS, INC.
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned, an
officer and/or director of FORD HOLDINGS, INC., does hereby constitute and
appoint S. A. Seneker, D. N. McCammon, M. S. Macdonald, J. W. Martin, Jr., F.
B. Kulp, J. M. Rintamaki, L. J. Ghilardi, T. J. DeZure, P. J. Sherry, Jr., P.
M. Donnelly and K. S. Lamping, and each of them, severally, his true and
lawful attorney and agent at any time and from time to time to do any and all
acts and things and execute, in his name (whether on behalf of FORD
HOLDINGS, INC., or as an officer or director of FORD HOLDINGS, INC., or by
attesting the seal of FORD HOLDINGS, INC., or otherwise), any and all
instruments which said attorney and agent may deem necessary or advisable in
order to enable FORD HOLDINGS, INC. to comply with the Securities Act of 1933,
the Securities Exchange Act of 1934 and any requirements of the Securities and
Exchange Commission in respect thereof, in connection with a Registration
Statement or Registration Statements and any and all amendments (including
post-effective amendments) to the Registration Statement or Registration
Statements relating to the issuance and sale of Debt Securities, Preferred
Stock and any Depositary Shares representing such Preferred Stock, Preferred
Stock Purchase Contracts and/or Capital Units of the Company, as authorized by
the Board of Directors of FORD HOLDINGS, INC. by unanimous written consents
dated February 12, 1992 and August 18, 1994, including specifically but without
limitation thereto, power and authority to sign his name (whether on behalf of
FORD HOLDINGS, INC., or as an officer or director of FORD HOLDINGS, INC., or by
attesting the seal of FORD HOLDINGS, INC., or otherwise) to such Registration
Statement or Registration Statements and to such amendments (including
post-effective amendments) to the Registration Statement or Registration
Statements to be filed with the Securities and Exchange Commission, or any of
the exhibits, financial statements and schedules, or the Prospectuses, filed
therewith, and to file the same with the Securities and Exchange Commission;
and each of the undersigned does hereby ratify and confirm all that said
attorneys and agents, and each of them, shall do or cause to be done by virtue
hereof. Any one of said attorneys and agents shall have, and may exercise, all
the powers hereby conferred.
IN WITNESS WHEREOF, each of the undersigned has signed his name hereto
as of the 18th day of August, 1994.
/s/ (W. F. Blood)
______________________________
(W. F. Blood)
/s/ (M. S. Macdonald)
______________________________
(M. S. Macdonald)
______________________________
(T. F. Marrs)
/s/ (D. N. McCammon)
______________________________
(D. N. McCammon)
/s/ (D. E. Richardson)
______________________________
(D. E. Richardson)
______________________________
(S. A. Seneker)
/s/ (H. J. Toffey, Jr.)
______________________________
(H. J. Toffey, Jr.)
/s/ (K. Whipple)
______________________________
(K. Whipple)
