TRW AUTOMOTIVE HOLDINGS CORP. Common Stock Underwriting Agreement
Exhibit 1.1
_________, 20__
[•]
[•]
As representatives (the “Representatives”) of
the several Underwriters named in Schedule I hereto,
the several Underwriters named in Schedule I hereto,
Ladies and Gentlemen:
TRW Automotive Holdings Corp., a Delaware corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in
Schedule I hereto (the “Underwriters”) an aggregate of ___shares (the
“Securities”), par value $.01 per share (“Stock”) of the Company.
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) An “automatic shelf registration statement” as defined under Rule 405 under the Securities
Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333- [•]) in respect of the
Securities has been filed with the Securities and Exchange Commission (the “Commission”)
not earlier than three years prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and no stop order suspending the
effectiveness of such registration statement or any part thereof has been issued and no proceeding
for that purpose has been initiated or, to the knowledge of the Company, threatened by the
Commission, and no notice of objection of the Commission to the use of such registration statement
or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received
by the Company (the base prospectus filed as part of such registration statement, in the form in
which it has most recently been filed with the Commission on or prior to the date of this
Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Securities filed with the
Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary
Prospectus”; the various parts of such registration statement, including (x) documents
incorporated by reference therein, (y) all exhibits thereto and (z) any prospectus supplement
relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to
be part of such registration statement, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the “Registration
Statement”;
the
Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as
defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form
of the final prospectus relating to the Securities filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the
“Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of
such prospectus; any reference to any amendment or supplement to the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective
amendment to the Registration Statement, any prospectus supplement relating to the Securities filed
with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein,
in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the
Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall
be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement; and any “issuer free writing prospectus”
as defined in Rule 433 under the Act relating to the Securities is hereinafter called an
“Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided , however , that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through you expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is ___:___.m. (New York
time) on the date of this Agreement. The Pricing Prospectus, as of the Applicable Time, did not
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; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not
conflict with the information contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together
with the Pricing Prospectus as of the Applicable Time and the information included on Schedule
II(b) hereto, did not 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; provided , however , that this representation
and warranty shall not apply to statements or omissions made in the Pricing Prospectus or an Issuer
Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through you expressly for use therein;
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(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when
they became effective or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder, and none of such documents 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; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided , however , that this representation
and warranty shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through you expressly for
use therein; and no such documents were filed with the Commission since the Commission’s close of
business on the business day immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule II(c) hereto;
(e) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder 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 amendment or
supplement thereto, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
provided , however , that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through you expressly for use therein;
(f) Neither the Company nor any subsidiaries has, since the date of the most recent audited
financial statements included or incorporated by reference in the Pricing Prospectus: (i) incurred
any material liability or obligation, direct or contingent, other than in the ordinary course of
business or (ii) entered into any material transaction or material agreement other than in the
ordinary course of business, in each case otherwise than as set forth or contemplated in the
Pricing Prospectus; and, since the respective dates as of which information has been provided in
the Registration Statement and the Pricing Prospectus, there has not been any material change in
the capital stock or long-term debt of the Company or any of its “significant subsidiaries” (as
such term is defined in Rule 1-02(w) of Regulation S-X under the Securities Act) (each, a
“Significant Subsidiary” and collectively, the “Significant Subsidiaries”) or any
dividend or distribution of any kind declared, set aside for payment, paid or made by the Company
on any class of its capital stock except as set forth on Schedule III hereto (solely with respect
to Significant Subsidiaries);
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(g) The Company and each of its subsidiaries have good and valid title in fee simple to, or
have valid rights to lease or otherwise use, all items of real and personal property that are
material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and defects and imperfections of title except those
that (i) do not materially interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries, (ii) (x) are contemplated by the Sixth Amended and Restated
Credit Agreement, dated as of June 24, 2009, as amended through the date thereof, among the
Company, TRW Automotive Intermediate Holdings Corp., TRW Automotive Inc., certain subsidiaries of
the Company, the financial institutions named therein and JPMorgan Chase Bank, N.A. (f/k/a JPMorgan
Chase Bank) as Administrative Agent and Collateral Agent (the “Credit Agreement”), (y) are
contemplated by the Permitted Receivables Financing (as defined in the Credit Agreement) or (z)
such as are described in the Pricing Prospectus, or (iii) could not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the business, financial
condition, or results of operations of the Company and its subsidiaries, taken as a whole (a
“Material Adverse Effect”);
(h) The Company and each of its Significant Subsidiaries have been duly organized and are
validly existing and, where applicable, in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and, where applicable, are in good
standing in each jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all corporate power
and authority necessary to own their respective properties and to conduct the businesses in which
they are engaged as described in the Pricing Prospectus, except where the failure to be so
qualified or have such power or authority would not, individually or in the aggregate, have a
Material Adverse Effect;
(i) The Company has an authorized capitalization as set forth in the Pricing Prospectus and
Prospectus and all the issued and outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable and conform to the
description of the Stock contained in the Pricing Prospectus and Prospectus; all of the outstanding
shares of capital stock or ownership interests, as applicable, of each Significant Subsidiary of
the Company have been duly and validly authorized and issued, are fully paid and non-assessable,
and are owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction upon voting or transfer or any other claim of any third
party, other than those contained in, or contemplated by, the Credit Agreement;
(j) The Company has the corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder; and all corporate action required to be taken for the due
and proper authorization, execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly taken by the Company;
(k) This Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the Company except as enforceability may be
limited by (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an
implied covenant of good faith and fair dealing;
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(l) The unissued Securities to be issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Prospectus;
(m) The issue and sale of the Securities to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the consummation of the transactions
herein contemplated will not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries is bound or
to which any of the property or assets of the Company or any of its Significant Subsidiaries is
subject, except for such conflicts, breaches, violations, defaults, liens, charges or encumbrances
that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, (ii) result in any violation of any law or statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental or regulatory authority or body having
jurisdiction over the Company or any of its Significant Subsidiaries or any of their respective
properties or assets, except for such violations that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or (iii) result in any violation of the
provisions of the Certificate of Incorporation or By-laws (or similar organizational documents) of
the Company or any of its Significant Subsidiaries; and no consent, approval, authorization or
order of, or filing, qualification or registration with, any such court or arbitrator or
governmental or regulatory authority or body under any such statute, judgment, order, decree, rule
or regulation is required for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement, except the registration under the Act
and the Exchange Act and such consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters or to list the Securities on the New York Stock
Exchange (the “Exchange”);
(n) Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its
Certificate of Incorporation or By-laws (or similar organizational documents), (ii) in default in
any respect or is alleged by any other party to be in default in any respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or any of its Significant Subsidiaries
is bound or to which any of the property or assets of the Company or any of its Significant
Subsidiaries is subject or (iii) in violation in any respect of any law or statute or any judgment,
order, decree, rule or regulation of any court or arbitrator or governmental or regulatory
authority or body to which it or its property or assets may be subject, other than, in the case of
clauses (ii) or (iii), such defaults or violations that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
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(o) Other than as set forth in the Pricing Prospectus and Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject (a) as to which
an adverse determination is reasonably probable and (b) which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect; and, to the knowledge of the
Company, no such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(p) The Company is not and, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof, will not be an “investment company”, as such term is
defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(q) (A) (i) At the time of filing the Registration Statement and (ii) at the time the Company
or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under
the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under
the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and
(B) at the time of the filing of the Registration Statement, the Company was not an “ineligible
issuer” as defined in Rule 405 under the Act;
(r) Ernst & Young LLP, who has audited certain financial statements of the Company and its
subsidiaries and has audited the Company’s internal control over
financial reporting, is an independent
registered public accounting firm as required by the Act and the
rules and regulations of the Commission thereunder and the Public Company Accounting Oversight Board;
(s) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The Company’s internal
control over financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(t) Since the date of the latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting;
(u) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) of the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective;
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(v) To the knowledge of the Company, no action has been taken and no statute, rule, regulation
or order has been enacted, adopted or issued by any governmental agency or body (other than “Blue
Sky” laws, regulations or orders) that prevents the issuance of the Securities by the Company or
suspends the sale of the Securities in any jurisdiction; no
injunction, restraining order or order of any nature by any Federal or state court of competent jurisdiction has been
issued with respect to the Company that would prevent or suspend the issuance or sale by the
Company of the Securities or the use of the Pricing Prospectus and Prospectus in any jurisdiction;
no action, suit or proceeding is pending against or, to the knowledge of the Company, threatened
against or affecting the Company before any court or arbitrator or any governmental agency, body or
official, domestic or foreign, that could reasonably be expected to restrain, enjoin, interfere
with or adversely affect the transactions contemplated by this Agreement in any material respect;
(w) The Company and each of its subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate Federal, state, local or foreign governmental or
regulatory authorities or bodies that are necessary for the conduct of their respective businesses
as described in the Pricing Prospectus and Prospectus, except where the failure to possess the same
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has received notification of any
revocation or modification of any such license, certificate, permit or other authorization or has
any reason to believe that any such license, certificate, permit or other authorization will not be
renewed in the ordinary course, except where the failure to possess the same could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(x) The Company and each of its subsidiaries have filed all Federal, state, local and foreign
income and franchise tax returns required to be filed through the date hereof, subject to permitted
extensions and have paid all taxes due and owing, except for taxes being contested in good faith
for which adequate reserves have been provided and any such taxes the failure of which to pay or so
file could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, and no tax deficiency has been determined adversely to the Company or any of its
subsidiaries, nor does the Company or any of its subsidiaries have any knowledge of any tax
deficiency, that could, in either case, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect;
(y) The Company and its subsidiaries have insurance covering their respective properties,
operations, personnel and businesses, which insurance is in amounts and insures against such losses
and risks as is customary for similar businesses or is required by law;
(z) No labor dispute with the employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is contemplated or threatened that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect;
(aa) No “prohibited transaction” (as defined in Section 406 of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published interpretations
thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986, as amended from
time to time (the “Code”)) or failure to satisfy the “minimum funding standard” or “minimum
required contribution” (as such terms are defined in Section 412 or 430 of the Code or Section 302
of ERISA) or any of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan of the Company or
any of its subsidiaries which could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect; each such employee benefit plan has been maintained in compliance
with its terms and the requirements of applicable law, including ERISA and the Code, except where
any noncompliance, individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; the Company and its Significant Subsidiaries have not incurred and do not
expect to incur liability under Title IV of ERISA with respect to the termination of, or withdrawal
from, any pension plan which could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect;
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(bb) Except as described in the Pricing Prospectus and except as could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any Federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, legally binding policy or rule of common law or
any judicial or legally binding administrative interpretation thereof, including any judicial or
legally binding administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products
(collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws (except for such
permits, authorizations and approvals the failure of which to possess could not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect) and are each in
compliance with their requirements, (C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) to the knowledge of the
Company, there are no events or circumstances that would reasonably be expected to form the basis
of an order for clean up or remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws;
(cc) Except as described in or contemplated by the Pricing Prospectus, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire, or instruments
convertible into or exchangeable for, or agreements or understandings with respect to the sale or
issuance of, any shares of capital stock of or other equity or other ownership interest in the
Company;
(dd) Other than this Agreement, neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person that would give rise to a valid claim
against the Company or any of its subsidiaries or any Underwriter for a brokerage commission,
finder’s fee or like payment in connection with the offering and sale of the Securities;
(ee) No forward-looking statement (within the meaning of Section 27A of the Act and Section
21E of the Exchange Act) contained in the Registration Statement, the
Preliminary Prospectus or the Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith;
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(ff) Neither the Company nor any of its affiliates has taken or will take, directly or
indirectly, any action designed to, or that could reasonably be expected to, cause or result in any
stabilization or manipulation of the price of the Securities; provided that the Company may
acquire Stock in open market transactions for purposes of matching contributions under its 401K
plan to the extent that all such open market transactions comply with the provisions of Regulation
M, as promulgated by the Commission; and
(gg) The Company and its subsidiaries own or possess adequate rights to use all patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures) necessary for
the conduct of their respective businesses, except where the failure to own or possess such rights
could not reasonably be expected to have a Material Adverse Effect; and, to the knowledge of the
Company, the conduct of their respective businesses does not conflict with any such rights of
others, except for any such conflicts as could not reasonably be expected to have a Material
Adverse Effect, and the Company and its subsidiaries have not received any written notice of any
claim of infringement of or conflict with any such rights of others (a) as to which an adverse
determination is probable and (b) which could reasonably be expected to have, individually, a
Material Adverse Effect.
2. Subject to the terms and conditions herein set forth, 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 a purchase price per share of [•], the number of Securities set forth
opposite their respective names in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.
4. (a) In lieu of delivering physical certificates representing the Securities, provided the
Company’s transfer agent is participating in the Depository Trust Company (“DTC”) Fast
Automated Securities Transfer (“FAST”) program, upon request of the Underwriters, the
Company shall use its best efforts to cause its transfer agent to electronically transmit the
Securities to the Underwriters by crediting the Underwriters’ DTC accounts through its Deposit
Withdrawal Agent Commission (“DWAC”) system. The time and date of payment shall be 9:30
a.m., New York City time, on [ ], 20[•]or such other time and date as you and the
Company may agree upon in writing. Such time and date are herein called the “Time of
Delivery .”
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any
additional documents reasonably requested by the Underwriters, will be delivered at the offices of
Cravath, Swaine & Xxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (the “Closing
Location”), and the Securities will be delivered at the
designated office, all at the Time of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New York City time,
on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will be available for review by
the parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York City are generally authorized or obligated by law or executive order to
close.
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5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement; to make no further amendment
or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to
the last Time of Delivery to which you reasonably object promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any amendment or supplement to the
Prospectus has been filed and to furnish you with copies thereof; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus, of the suspension of
the qualification of the Securities 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 Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form
approved by you and to file such form of prospectus pursuant to Rule 424(b) under the Act not later
than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement
to such form of prospectus to which you reasonably object promptly after reasonable notice thereof;
(c) Promptly from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such United States jurisdictions
as you may request and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Securities; provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service of process in any
jurisdiction;
(d) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required at any time prior to the expiration
of nine months after the
time of issue of the Prospectus in connection with the offering or sale of the Securities and,
if at such time any event shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an 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 when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order to comply with the
Act or the Exchange Act, to notify you and upon your request to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the Prospectus, upon your
request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as you may reasonably request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act;
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(e) During the period beginning from the date hereof and continuing to and including the date
that is 45 days after the date of the Prospectus, not to offer, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to the Securities,
including but not limited to any options or warrants to purchase shares of Stock or any securities
that are convertible into or exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities without your prior written consent. The foregoing restriction
shall not apply to (i) the Securities to be sold by the Company hereunder, (ii) the issuance by the
Company of shares of Stock upon the exercise of an option or warrant or upon the conversion or
exchange of convertible or exchangeable securities in each case outstanding on the date of the
Prospectus, (iii) the issuance of Stock or grants of options to purchase Stock under the Company’s
stock plans described or incorporated by reference in the Prospectus, (iv) the issuance of shares
of Stock in connection with the acquisition of another company; provided that the aggregate
market value of such securities may not exceed 5% of the market capitalization of the Company as of
the date hereof and the recipients of such shares of Stock agree to be bound by the restrictions
contained in this paragraph for 45 days after the date of the Prospectus, (v) the filing of a
registration statement in respect of the Stock within 45 days from the date of the Prospectus;
provided that the Company obtains the prior written consent of the Representatives (other
than a registration statement on Form S-8 with respect to the Company’s 401K plan or stock
incentive plan), (vi) transactions by any person other than the Company relating to shares of Stock
or other securities acquired in open market transactions after the completion of the offering,
(vii) transfers of shares of Stock or any security convertible, exchangeable for or exercisable
into Stock as a bona fide gift or gifts as a result of the operation of law or testate or intestate
succession; provided that the transferee agrees to be bound by the same terms as the
transferor under this Section 5(e); (viii) transfers to a trust, partnership, limited liability
company or other entity, the beneficial interests of which are held by the transferor;
provided that the transferee agrees to be bound by the same terms as the transferor under
this Section 5(e); or (ix) the sale of Stock pursuant to the cashless exercise of stock
options to cover payment of the exercise price and/or tax withholding payments due upon exercise (including, to the extent such cashless
transaction is not permitted, the sale of Stock (whether issued upon such exercise or previously
held) with proceeds up to the amount of the exercise price and/or tax withholding payments made in
connection with such exercise);
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(f) To use the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(g) To use its reasonable best efforts to list, subject to notice of issuance, the Shares on
the Exchange;
(h) If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act; and
(i) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s name and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line offering of the Securities
(the “License”); provided , however , that the License shall be used solely
for the purpose described above, is granted without any fee and may not be assigned or transferred;
and provided further that the License shall expire on the date that is nine months after
the date hereof.
6. (a) The Company represents and agrees that, without your prior consent, it has not made
and will not make any offer relating to the Securities that would constitute a “free writing
prospectus” as defined in Rule 405 under the Act; each Underwriter represents and agrees that,
without the prior consent of the Company and you, it has not made and will not make any offer
relating to the Securities that would constitute a free writing prospectus; any such free writing
prospectus the use of which has been consented to by the Company and you is listed on Schedule
II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or would include an 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 then
prevailing, not misleading, the Company will give prompt notice thereof to you and, if requested by
you, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus
or other document which will correct such conflict, statement or omission; provided ,
however , that this representation and warranty shall not apply to any statements or
omissions in an Issuer Free Writing Prospectus made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through you
expressly for use therein.
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7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing 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 the Blue Sky Memorandum and any
other documents prepared in connection with the offering, purchase, sale and delivery of the
Securities under state securities laws; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in Section 5(c)
hereof, including the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky Memorandum; (iv) all fees
and expenses in connection with listing the Securities on the Exchange, if any; (v) the filing fees
incident to, and the reasonable fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the Financial Industry Regulatory Authority of the
terms of the sale of the Securities; (vi) the cost of preparing stock certificates; (vii) the cost
and charges of any transfer agent or registrar; (viii) 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 Section, and Sections 9 and 12
hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Securities to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act within the applicable time period prescribed for such filing by the rules and regulations under
the Act and in accordance with Section 5(a) hereof; if the Company has chosen to rely on Rule
462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission and no notice
of objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus 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 to your reasonable satisfaction;
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(b) Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, shall have furnished to you its
written opinion and 10b-5 letter (in the forms attached as Annex II(a)-1 and Annex II(a)-2 hereto),
dated such Time of Delivery and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall have furnished to you its
written opinion and negative assurance statement (in the forms attached as Annex II(b)-1 and Annex
II(b)-2 hereto), dated such Time of Delivery, in form and substance reasonably satisfactory to you;
(d) The General Counsel of the Company shall have furnished to you his or her written opinion
(in the form attached as Annex II(c) hereto), dated such Time of Delivery;
(e) On the date of the Pricing Prospectus upon execution of this Agreement, at 9:30 a.m., New
York City time, on the effective date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and also at the Time of Delivery, Ernst & Young LLP
shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in Annex I hereto;
(f) Subsequent to the execution and delivery of this Agreement, no event or condition of a
type described in Section 1(f) shall have occurred or shall exist, which event or condition is not
described in the Pricing Prospectus, the effect of which in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Securities being delivered
at the Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(g) On or after the Applicable Time (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities by any “nationally recognized statistical rating
organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act; and (ii) no such organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company’s debt securities;
(h) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the Exchange; (ii) a
suspension or material limitation in trading in the Company’s securities on the Exchange; (iii) a
general moratorium on commercial banking activities declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(iv) or (v) in your judgment is so material and adverse as to make it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities being delivered at the Time
of Delivery on the terms and in the manner contemplated in the Prospectus;
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(i) The Company shall have complied with the provisions of Section 5(d) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement;
(j) The Securities shall have been duly listed, subject to notice of issuance, on the
Exchange;
(k) The Company has obtained and delivered to the Underwriters executed copies of an agreement
from [•], substantially to the effect set forth in Section 5(e) hereof in form and substance
satisfactory to you; and
(l) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
a certificate of the chief financial officer of the Company as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, and the Company shall have furnished or caused to be furnished certificates of
the chief financial officer of the Company as to the matters set forth in subsections (a) and (f)
of this Section and as to such other matters as you may reasonably request.
9. Indemnification:
(a) The Company will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become subject, 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 an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact 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 as such expenses are
incurred; 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 the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the Company by you expressly
for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, 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 an untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission to state therein a material fact 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 the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus or any
such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by such Underwriter through you
expressly for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
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(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of 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; provided that, the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to any indemnified
party under subsection (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided
further that the omission so to notify the indemnifying party shall not relieve it from any
liability 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 reasonably satisfactory to such indemnified
party (which counsel may at the option of the indemnifying party be counsel to the indemnifying
party unless (1) the indemnified party has reasonably concluded (based upon advice of counsel to
the indemnified party) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the indemnifying party or (2)
a conflict or potential conflict exists (based upon advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party), 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 expenses of
other counsel or any other expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of investigation. If the
indemnifying party does not assume the defense of such action, it is understood that the
indemnifying party shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in
addition to one separate firm of local attorneys in each such jurisdiction when reasonably
necessary but not to include two firms in the same jurisdiction) at any time for all such
indemnified parties. The indemnifying party shall not be liable for any settlement of an action or
claim for monetary damages effected without its consent, which consent shall not be unreasonably
withheld, but if settled with such consent or if there is a final judgment for the plaintiff, the
indemnifying party shall indemnify each indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of such action or
claim and (ii) does not include a statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
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(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to
hold harmless 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 on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, 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 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 the 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 the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this 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 underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. 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
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 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; and the obligations of the Underwriters under this Section 9 shall be in addition to any
liability which the respective 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.
17
10. Default:
(a) If any Underwriter shall default in its obligation to purchase the Securities which it has
agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties reasonably satisfactory to the Company to purchase such Securities
on the terms contained herein. If within 36 hours after such default by any Underwriter you do not
arrange for the purchase of such Securities, then the Company shall be entitled to a further period
of 36 hours within which to procure another party or other parties satisfactory to you to purchase
such Securities on such terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such Securities, or the Company
notifies you that it has so arranged for the purchase of such Securities, you or the Company shall
have the right to postpone a Time of Delivery 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, or in any other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which in your opinion 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 such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Securities to be purchased at the Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the number of
Securities which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the
number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above,
the aggregate number of such Securities which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Securities to be purchased at the Time of Delivery, or if the
Company shall not exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters
as provided in Section 7 hereof and the indemnity and
contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for
its default.
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11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of 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 any controlling person of any Underwriter, or the Company or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Securities.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof (and in any
case, shall not be under any liability to any defaulting Underwriter); but, if for any other reason
the Securities are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities not so delivered, but the
Company shall then be under no further liability to any Underwriter in respect of the Securities
not so delivered except as provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to (i) [•], [•],
New York, New York [•], Attention: Registration Department; (ii) [•], [•], New York, New York [•],
Attention: Syndicate Desk, as the representatives, and if to the Company shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer; provided , however , that
any notice to an Underwriter pursuant to Section [•] hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’
Questionnaire or telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and
directors of the Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
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15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Securities
pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the
one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the
obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal
and financial advisors to the extent it deemed appropriate. The Company agrees that it will not
claim that the Underwriters, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument. Delivery of an executed signature page of
this Agreement by facsimile or scanned transmission shall be effective as delivery of a manually
executed counterpart hereof.
If the foregoing is in accordance with your understanding, please sign and return to us seven
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for examination, upon request,
but without warranty on your part as to the authority of the signers thereof.
| Very truly yours, TRW Automotive Holdings Corp. |
||||
| By: |
/s/
|
Name: [•]
| Title: | [•] |
20
Accepted as
of the date hereof
[•]
| By: |
Name:
Title:
[•]
| By: |
Name:
Title:
On behalf of each of the Underwriters listed on Schedule I
21
SCHEDULE I
| Total Number of | ||||
| Securities | ||||
| Underwriter | to be Purchased | |||
[•] |
[•] | |||
[•] |
[•] | |||
[•] |
[•] | |||
Total |
[•] | |||
SCHEDULE II
(a) Issuer Free Writing Prospectuses:
(b) Pricing Information:
Number of Shares:
Price per Share:
(c) Additional Documents Incorporated by Reference:
SCHEDULE III
Significant Subsidiaries
Significant Subsidiaries
| 1. | TRW Automotive Holdings Corp. | ||
| 2. | TRW Automotive Intermediate Holdings Corp. | ||
| 3. | TRW Automotive Inc. | ||
| 4. | Automotive Holdings (UK) Limited | ||
| 5. | Xxxxx Industries Limited | ||
| 6. | LucasVarity | ||
| 7. | LucasVarity Automotive Holding Company | ||
| 8. | Xxxxxx-Xxxxx Company | ||
| 9. | TRW Airbag Systems GmbH | ||
| 10. | TRW Automotive U.S. LLC | ||
| 11. | TRW Deutschland Holding GmbH | ||
| 12. | TRW Intellectual Property Corp. | ||
| 13. | TRW Vehicle Safety Systems Inc. |
ANNEX I
[Letterhead of Ernst & Young LLP]
ANNEX II(a-1)
[Letterhead of Cravath, Swaine & Xxxxx LLP]
ANNEX II(a)-2
[Letterhead of Cravath, Swaine & Xxxxx LLP]
ANNEX II(b)-1
[Letterhead of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP]
ANNEX II(b)-2
[Letterhead of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP]
