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[FORM OF UNDERWRITING AGREEMENT]
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
(a Delaware corporation)
[ ] Shares of Common Stock
UNDERWRITING AGREEMENT
Dated:
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AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
(a Delaware corporation)
[ ] Shares of Common Stock
(Par Value $0.01 Per Share)
UNDERWRITING AGREEMENT
[DATE]
[NAMES AND ADDRESSES
OF UNDERWRITERS]
Ladies and Gentlemen:
American Axle & Manufacturing Holdings, Inc., a Delaware corporation
(the "Company") and the persons listed on Schedule A hereto (the "Selling
Shareholders") confirm their agreements with [NAME OF LEAD UNDERWRITER] (the
"Lead Underwriter") and each of the other Underwriters named in the applicable
Terms Agreement (as defined below) (collectively, the "Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom [NAMES OF REPRESENTATIVES] are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Selling Shareholders, acting severally and not jointly, and the
purchase by the Underwriters, acting severally and not jointly, of up to [ ]
shares of Common Stock, par value $0.01 per share, of the Company (the "Common
Stock") in the respective amounts set forth in Schedules A and B hereto or in
the applicable Terms Agreement, from time to time, in or pursuant to one or more
offerings on terms to be determined at the time of sale as set forth in the
applicable Terms Agreement.
Whenever the Selling Shareholders determine to make an offering of
shares of Common Stock through the Representatives, the Company and the Selling
Shareholders will enter into an agreement (each, a "Terms Agreement") providing
for the sale of such shares of Common Stock to, and the purchase and offering
thereof by, the Underwriters. The Terms Agreement relating to the offering of
such shares of Common Stock shall specify the number of shares to be initially
sold (the "Initial Securities") and the number of shares to be purchased by the
Underwriters, the initial offering price, the price at which the Initial
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Securities and any other material
terms of the Initial Securities. In addition, if applicable, such Terms
Agreement shall specify whether the Selling Shareholders have granted to the
Underwriters, acting severally and not jointly, the option described in Section
2(b) hereof to purchase all or any part to cover over allotments, if any (the
"Option Securities"). As used herein, the term "Securities" shall include the
Initial Securities and the Option Securities. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form or written communication between the Company, the
Selling Shareholders and the Representatives. Each offering of Securities
through the Representatives will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement.
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The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-[ ]) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission, and the Company has filed such post-effective amendments thereto
as may be required prior to the execution of the applicable Terms Agreement and
each such post-effective amendment has been declared effective by the
Commission. Promptly after execution and delivery of the applicable Terms
Agreement, the Company will either (i) prepare and file a prospectus and
prospectus supplement in accordance with the provisions of Rule 430A ("Rule
430A") of the 1933 Act Regulations and paragraph (b) of Rule 424 ("Rule 424(b)")
of the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus and prospectus supplement or in such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each
prospectus and prospectus supplement used before such registration statement
became effective, and any prospectus or prospectus supplement that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement (as so amended, if applicable), including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus and final prospectus supplement, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Securities are collectively herein called
the "Prospectus;" provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to Securities Exchange Act of 1934,
as amended (the "1934 Act"). If Rule 434 is relied on, the term "Prospectus"
shall refer to the final or preliminary prospectus, together with the applicable
Term Sheet, and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is
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incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated by reference in
the Registration Statement, such preliminary prospectus or the Prospectus, as
the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement as of the date thereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets
the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any amendments or supplements were issued and at the
Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434.
Notwithstanding the foregoing, the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the
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1933 Act Regulations and each preliminary prospectus and each
Prospectus delivered to the Underwriters for use in connection with the
offering of the Securities will be identical to the electronically
transmitted copy thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedule included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, together with the
related schedule and notes, present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries at
the dates indicated and the respective statement of income,
shareholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedule included in the Registration
Statement presents fairly in all material respects in accordance with
GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries (taken as a whole), whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its subsidiaries (taken as a whole), and (C) there has been no dividend
or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
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(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the applicable Terms
Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
of the Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) (each a "Subsidiary" and, collectively,
the "Subsidiaries") has been duly organized and is validly existing as
a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity, except as has been made in connection with that certain Credit
Facility, dated as of October 27, 1997, among the Company, American
Axle & Manufacturing of Michigan, Inc., the lenders named therein, The
Chase Manhattan Bank, as administrative agent and collateral agent and
Chase Manhattan Bank of Delaware, as fronting agent, as amended (the
"Credit Agreement"); none of the outstanding shares of capital stock of
any Subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such Subsidiary. The only Subsidiaries
of the Company are the Subsidiaries listed on Schedule B hereto.
(viii) Capitalization. The shares of issued and outstanding
capital stock have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of
capital stock was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Authorization of this Agreement and the Terms Agreement. This
Agreement has been, and the applicable Terms Agreement as of the date
thereof will have been, duly authorized, executed and delivered by the
Company.
(x) Authorization and Description of Securities. The Securities to
be purchased by the Underwriters from the Selling Shareholders have
been duly authorized and validly issued and are fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus and such description conforms
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to the rights set forth in the instruments defining the same; no holder
of the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the
Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or in
default, or, to the Company's knowledge, alleged by any other party to
be in default, in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the applicable Terms
Agreement and the consummation of the transactions contemplated herein
and therein and compliance by the Company with its obligations under
this Agreement and the applicable Terms Agreement have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default, or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or any subsidiary or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company or
any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of
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the transactions contemplated in this Agreement or the applicable Terms
Agreement or the performance by the Company of its obligations
hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required and the descriptions of all such contracts and documents in
the Prospectus are complete and accurate in all material aspects.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Agreement or the applicable Terms Agreement,
in connection with the offering or sale of the Securities hereunder or
thereunder or the consummation of the transactions contemplated by this
Agreement or the applicable Terms Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state or foreign securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except
where the failure to possess would not, singly or in the aggregate,
have a Material Adverse Effect; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not have a
Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a
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Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and
its subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (a) are described in the Prospectus, (b) were made in connection
with the Credit Agreement or (c) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or
any of its subsidiaries; and all of the leases and subleases material
to the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any subsidiary under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Investment Company Act. The Company is not, and upon the
sale of the Securities as contemplated herein and in the applicable
Terms Agreement will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, 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 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 absence of which would not 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,
investigation or proceedings relating to any Environmental Law against
the
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Company or any of its subsidiaries and (D) there are no events or
circumstances that might 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.
(xxi) Registration Rights. There are no persons with registration
rights or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act except as described in the Prospectus.
Except for rights properly exercised by the Selling Shareholders, all
applicable "piggy-back" registration rights otherwise applicable and
entitling the persons holding such rights to have any securities so
registered have been duly and validly waived in respect of the
Registration Statement and the transactions contemplated thereby.
(xxii) Taxes. The Company and each of its subsidiaries have filed
all necessary federal, state, local and foreign income, payroll,
franchise and other tax returns (after giving effect to extensions) and
have paid all taxes shown as due thereon or with respect to any of its
properties, except for taxes being contested in good faith for which
adequate reserves have been provided, and there is no tax deficiency
that has been, or to the knowledge of the Company is likely to be,
asserted against the Company, any of its subsidiaries or any of their
properties or assets that would result in a Material Adverse Effect.
(xxiii) Maintenance of Adequate Insurance. The Company and each of
its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as is
reasonably prudent in the business in which it is engaged or proposed
to engage after giving effect to the transactions described in the
Prospectus; and the Company does not have any reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not result in a Material Adverse Effect.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter as of the date hereof, and to each Underwriter named in the
applicable Terms Agreement as of the date thereof, as of the Closing Time, and,
if the Selling Shareholder is selling Option Securities on a Date of Delivery,
as of each such Date of Delivery, and agrees with each Underwriter, as follows:
(i) Accurate Disclosure. Blackstone Capital Partners II Merchant
Bank Fund L.P., Blackstone Offshore Capital Partners II L.P. and
Blackstone Family Investment Partnership II L.P. (collectively,
"Blackstone") hereby represents and warrants that the Blackstone
Information contained in the Prospectus or any amendments or
supplements thereto does not include any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The Underwriters and Blackstone agree that
"Blackstone Information" consists solely of the biographical
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information with respect to Xxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxx and
Xxxx X. Xxxxxxxx incorporated by reference into the Registration
Statement and the information with respect to beneficial ownership of
Common Stock by Blackstone under the caption "Selling Stockholders" and
any comparable caption in the Prospectus.
(ii) Authorization of Agreements. Each Selling Shareholder has the
full right, power and authority to enter into this Agreement, the
applicable Terms Agreement and a Power of Attorney and Custody
Agreement (the "Power of Attorney and Custody Agreement") and to sell,
transfer and deliver the Securities to be sold by such Selling
Shareholder hereunder. The execution and delivery of this Agreement,
the applicable Terms Agreement and the Power of Attorney and Custody
Agreement and the sale and delivery of the Securities to be sold by
such Selling Shareholder and the consummation of the transactions
contemplated herein and compliance by such Selling Shareholder with its
obligations hereunder have been duly authorized by such Selling
Shareholder and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any tax, lien, charge or encumbrance upon the Securities to be sold by
such Selling Shareholder or any property or assets of such Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which such Selling Shareholder is a party or
by which such Selling Shareholder may be bound, or to which any of the
property or assets of such Selling Shareholder is subject, nor will
such action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of such Selling Shareholder,
if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over such Selling Shareholder or any of its properties.
(iii) Direct Holder of Securities; Title to Securities. Such
Selling Shareholder holds and will hold at the Closing Time and, if any
Option Securities are purchased, on the relevant Date of Delivery, the
Securities to be sold by such Selling Shareholder hereunder and under
the applicable Terms Agreement, free and clear of any adverse claim,
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement and the
applicable Terms Agreement; such Securities are certificated securities
in registered form and are not held in any securities account or by or
through any securities intermediary within the meaning of the Uniform
Commercial Code as in effect in the State of New York ("NYUCC"); such
Selling Shareholder has, and, at the Closing Time and, if any Option
Securities are purchased, on any relevant Date of Delivery, will have,
full right, power and authority to hold, sell, transfer and deliver the
Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the applicable Terms Agreement, and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no written notice of
any adverse claim, each of the Underwriters will be a protected
purchaser (as defined in the NYUCC) with respect to the Securities
purchased by it from such Selling Shareholder, and each such
Underwriter will acquire the interest of such Selling Shareholder in
such Securities free and clear of any
10
adverse claim, security interest, mortgage, pledge, lien, charge,
claim, equity or encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement.
Such Selling Shareholder has duly executed and delivered, in the form
heretofore furnished to the Representative(s), the Power of Attorney
and Custody Agreement with Xxxx Xxxxxxxx and Xxxxx Xxxxxxx as
attorneys-in-fact (the "Attorneys-in-Fact") and EquiServe Trust Company
N.A., as custodian (the "Custodian"); the Custodian is authorized to
deliver the Securities to be sold by such Selling Shareholder hereunder
and to accept payment therefor; and each Attorney-in-Fact is authorized
to execute and deliver this Agreement and the applicable Terms
Agreement and the certificate referred to in Section 5(f) or that may
be required pursuant to Sections 5(l) on behalf of such Selling
Shareholder, to sell, assign and transfer to the Underwriters the
Securities to be sold by such Selling Shareholder hereunder, to
determine the purchase price to be paid by the Underwriters to such
Selling Shareholder, as provided in Section 2(a) hereof, to authorize
the delivery of the Securities to be sold by such Selling Shareholder
hereunder, to accept payment therefor, and otherwise to act on behalf
of such Selling Shareholder in connection with this Agreement and the
applicable Terms Agreement.
(v) Absence of Manipulation. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(vi) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or foreign,
is necessary or required for the performance by such Selling
Shareholder of its obligations hereunder or in the Power of Attorney
and Custody Agreement, or in connection with the sale and delivery of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement and the applicable Terms Agreement,
except such as may have previously been made or obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(vii) Restriction on Sale of Securities. During a period of [o]
days from the date of the applicable Terms Agreement, such Selling
Shareholder will not, without the prior written consent of the Lead
Underwriter, (i) offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale or lend or otherwise dispose
of or transfer, directly or indirectly, any share of Common Stock or
any securities convertible into or exercisable or exchangeable for
Common Stock whether now owned or hereafter acquired or with respect to
which such Selling Shareholder has or hereafter acquires the power of
disposition, or request or demand that the Company file any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or
11
transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Securities to
be sold hereunder.
(viii) Certificates Suitable for Transfer. Certificates for all of
the Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the applicable Terms Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed, have been
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the Underwriters pursuant to
this Agreement and the applicable Terms Agreement.
(ix) No Association with NASD. To such Selling Shareholder's
knowledge, neither such Selling Shareholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(m) of the
By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(the "NASD") that is participating as an underwriter or selling group
member in the offering of the Securities.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of a Selling Shareholder as such and
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement and the applicable Terms Agreement shall be deemed a
representation and warranty by such Selling Shareholder to the Underwriters as
to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. The several commitments of the Underwriters to
purchase the Initial Securities pursuant to the applicable Terms Agreement shall
be deemed to have been made on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholders, acting severally and not jointly, may
grant, if so provided in the applicable Terms Agreement, an option to the
Underwriters, severally and not jointly, to purchase up to an additional number
of shares of Common Stock from the Selling Shareholders as set forth therein, at
the price per share set forth therein, less an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial
Securities but not payable on the Option Securities. The option hereby granted
will expire 30 days after the date of such Terms Agreement and may be exercised
in whole or in part (ratably among the Selling Shareholders) from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Securities upon notice by the
Representatives to the Selling Shareholders setting forth the number of Option
Securities as to
12
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and date
of delivery (a "Date of Delivery") shall be determined by the Representatives,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is exercised as to all or any portion of the Option Securities, each
of the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities each such Underwriter has agreed to purchase as
set forth in the applicable Terms Agreement opposite the name of such
Underwriter bears to the total number of Initial Securities, and the Selling
Shareholders, acting severally and not jointly, shall sell that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities each such Selling Shareholder has agreed to sell as set forth
in the applicable Terms Agreement opposite the name of such Selling Shareholder
bears to the total number of Initial Securities being sold by the Selling
Shareholders, subject in each case to such adjustments as the Representatives in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of [ ],
or at such other place as shall be agreed upon by the Representatives, the
Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date of the applicable Terms Agreement (unless postponed
in accordance with the provisions of Section 10), or such other time not later
than ten business days after such date as shall be agreed upon by the
Representatives and the Selling Shareholders (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Selling Shareholders, on each Date of Delivery as specified in the
notice from the Representatives to the Selling Shareholders.
Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to bank accounts designated by the Custodian
pursuant to each Selling Shareholder's power of Power of Attorney and Custody
Agreement, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. The Lead Underwriter, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the
13
Representatives may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial Securities and the Option Securities, if any, will
be made available for examination and packaging by the Representatives in The
City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object in writing within a reasonable period of
time.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
14
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and the applicable Terms Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement or the date of the applicable Terms Agreement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement or
the date of the applicable Terms Agreement.
15
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect and
maintain the listing of the Securities on the New York Stock Exchange and will
file with the New York Stock Exchange all documents and notices required by the
New York Stock Exchange of companies that have securities listed thereon.
(i) Restriction on Sale of Securities. During a period of [ ] days from
the date of the applicable Terms Agreement, the Company will not, without the
prior written consent of the Lead Underwriter, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale or lend or otherwise dispose of or transfer any share of Common Stock
or any securities convertible into or exercisable or exchangeable for Common
Stock or file any registration statement under the 1933 Act with respect to any
of the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder, (B) grants
of stock options and other awards pursuant to the terms of the Company's stock
option plans in effect on the date hereof and described in the Prospectus, (C)
any shares of Common Stock issued by the Company upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof and
referred to in the Prospectus, (D) any shares of Common Stock issued or
purchased in the open market by the Company pursuant to the American Axle &
Manufacturing, Inc. 401(k) Plan or (E) offers, sales and issuances of shares of
Common Stock, options, rights or warrants to purchase or any securities
convertible into or exercisable or exchangeable for Common Stock in connection
with acquisitions of businesses, companies or assets by the Company so long as
the recipients of such shares, options, rights, warrants or convertible
securities are subject to the restrictions of this Section 3(i) until the
expiration of such [ ]-day period.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its and the Selling Shareholders' obligations
under this Agreement and the applicable Terms Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iii) the
16
fees and disbursements of the Company's and Selling Shareholders' respective
counsel, accountants and other advisors, (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation, printing and delivery of the Blue Sky Survey and any supplement
thereto, (v) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vi) the fees and expenses of any transfer agent or
registrar for the Securities, (vii) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the NASD of the terms of the sale of the Securities, if
applicable, (viii) the fees and expenses incurred in connection with the listing
of the Securities on the New York Stock Exchange and (ix) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Securities to the Underwriters, and their transfer between the Underwriters
pursuant to an agreement between such Underwriters. It is understood, however,
that except as provided in this Section or Sections 6, 7 or 9 hereof, the
Underwriters shall pay their own costs and expenses, including the fees and
disbursements of their counsel, stock transfer taxes due upon resale of any of
the Securities by them and any advertising expenses incurred in connection with
any offers they may make.
(b) Termination of Agreement. If this Agreement or the applicable Terms
Agreement is terminated by the Representatives in accordance with the provisions
of Section 5 (other than as a result of the failure to satisfy the condition set
forth in Section 5(j)), Section 9(a)(i) or Section 11 hereof, the Company shall
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
(c) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Shareholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder and under the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of the Company and
the Selling Shareholders contained in Section 1 hereof or in certificates of any
officer of the Company or any subsidiary of the Company or on behalf of any
Selling Shareholder delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to
17
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, and of Xxxxxxx
Xxxxxxx, Esq., General Counsel of the Company, each in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth
in Exhibits B-1 and B-2 hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time,
the Representatives shall have received the favorable opinion, dated as of
Closing Time, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Selling
Shareholders, and of Walkers, counsel to Blackstone Offshore Capital Partners II
L.P., each in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters to the effect as counsel to the Underwriters may reasonably
request.
(d) Opinion of Counsel for the Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Mayer, Brown, Xxxx & Maw, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i) (solely as to the valid
existence and good standing and corporate power and authority of the Company),
(ii) (solely as to the Securities), (iii) (solely as to preemptive or other
similar rights arising by operation of law or under the charter or by-laws of
the Company), (iv) through (vi), inclusive, and the penultimate paragraph of
Exhibit B-1 hereto. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company or any of its subsidiaries whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
18
(f) Certificate of Selling Shareholders. At Closing Time, the
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each Selling Shareholder contained in
Section 1(b) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement and the applicable
Terms Agreement at or prior to Closing Time.
(g) Accountants' Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Representatives shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance
satisfactory to the Representatives and the Company, together with signed or
reproduced copies of such letter for each of the other Underwriters containing
statements and information to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from Deloitte & Touche LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (g) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange.
(j) No Objection. If a registration statement for an offering of
Securities has been filed with the NASD for review, the NASD shall have
confirmed that it has not raised any objection with respect to the fairness and
reasonableness of the underwriting terms and arrangements.
(k) Lock-up Agreements. At the date of the applicable Terms Agreement,
the Representatives shall have received an agreement substantially in the form
of Exhibit C hereto signed by the persons listed on Schedule C hereto.
(l) Conditions to Purchase of Option Securities. In the event that the
Underwriters are granted an over-allotment option in the applicable Terms
Agreement and they exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Company and the Selling Shareholders contained herein and the
statements in any certificates furnished by the Company, any subsidiary of the
Company and the Selling Shareholders shall be true and correct as of each Date
of Delivery and, at the relevant Date of Delivery, the Representatives shall
have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(e) hereof remains true and correct as of such Date of
Delivery.
19
(ii) Certificate of Selling Shareholders. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Shareholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Company, and of Xxxxxxx
Xxxxxxx, General Counsel for the Company, each in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling Shareholders. The
favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the
Selling Shareholders, and of Walkers, counsel to Blackstone Offshore
Capital Partners II L.P., each in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(c)
hereof.
(v) Opinion of Counsel for the Underwriters. The favorable opinion
of Mayer, Brown, Xxxx & Maw, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from Deloitte & Touche
LLP, in form and substance satisfactory to the Representatives and the
Company and dated such Date of Delivery, substantially in the same form
and substance as the letter furnished to the Representatives pursuant
to Section 5(g) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than five
days prior to such Date of Delivery.
(m) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
sale of the Securities as contemplated herein and in the applicable Terms
Agreement, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company and the Selling Shareholders in connection
with the sale of the Securities as contemplated herein and in the applicable
Terms Agreement shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(n) Termination of Terms Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement, or, in the case of any condition to the purchase of
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in
20
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company will not be liable in any such case to any Underwriter to the
extent that any such loss, liability, claim, damage or expense arises
out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission in the Blackstone Information;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Lead
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) and (B) as
to any preliminary prospectus,
21
this indemnity agreement shall not inure to the benefit of any Underwriter or
any person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act on account of any loss,
liability, claim, damage or expense arising from the fact that such Underwriter
sold Securities 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 (as then amended
or supplemented) in any case where such delivery is required by the 1933 Act if
the Company has previously furnished copies thereof to such Underwriter in the
quantities requested and the loss, liability, claim, damage or expense of such
Underwriter results from an untrue statement or omission of a material fact
contained in such preliminary prospectus which the Company has sustained the
burden of proving was corrected in the Prospectus (as then amended or
supplemented).
(b) Indemnification of the Underwriters by the Selling Shareholders.
Each Selling Shareholder agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with reference to the
Blackstone Information.
(c) Indemnification of Company, Directors and Officers and the Selling
Shareholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the Selling
Shareholders and each person, if any, who controls the Selling Shareholders
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Lead Underwriter;
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the
22
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel which are reimbursable under
this Section 6 or Section 7, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement, which notice shall include a statement by the indemnified party that
it proposes to enter into such settlement on such terms to the extent permitted
by this Section 6(e), at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement and the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholders on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement and
the applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement and the applicable Terms Agreement (before deducting
expenses) received by the Selling Shareholders and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding
23
location on the Term Sheet, bear to the aggregate initial public offering price
of the Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Shareholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Selling Shareholders within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
the Selling Shareholders, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
the applicable Terms Agreement and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries or the Selling
24
Shareholders submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Company or the
Selling Shareholders, and shall survive delivery of and payment for the
Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. This Agreement (excluding the applicable
Terms Agreement) may be terminated for any reason at any time by the Company,
the Selling Shareholders or the Representatives, as the case may be, upon the
giving of 30 days' prior written notice of such termination to the other parties
hereto. The Representatives may terminate the applicable Terms Agreement, by
notice to the Company and the Selling Shareholders, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of the Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or any of its subsidiaries, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the New York Stock Exchange has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by the New
York Stock Exchange or by order of the Commission, the NASD or any other
governmental authority, (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(v) if a banking moratorium has been declared by Federal or New York
authorities.
(b) Liabilities. If this Agreement or the applicable Terms Agreement is
terminated pursuant to this Section, such termination shall be without liability
of any party to any other party except as provided in Section 4 hereof, and
provided further that Sections 1, 6, 7 and 8 shall survive such termination and
remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
or the applicable Terms Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be
25
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, pursuant to such Terms Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the Selling Shareholders to
sell the Option Securities to be purchased and sold on such Date of Delivery,
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the obligation
of the Underwriters to purchase and the Selling Shareholders to sell the
relevant Option Securities, as the case may be, either (i) the Representatives
or (ii) the Company and the Selling Shareholders shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders. If a
Selling Shareholder shall fail at Closing Time or at a Date of Delivery to sell
and deliver the number of Securities which such Selling Shareholder or Selling
Shareholders are obligated to sell hereunder, and the remaining Selling
Shareholders do not exercise the right hereby granted to increase, pro rata or
otherwise, the number of Securities to be sold by them hereunder to the total
number to be sold by all Selling Shareholders as set forth in the applicable
Terms Agreement, then the Underwriters may, at option of the Representatives, by
notice from the Representatives to the Company and the non-defaulting Selling
Shareholders, either (i) terminate the applicable Terms Agreement without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (ii) elect to
purchase the Securities which the non-defaulting Selling Shareholders have
agreed to sell hereunder. No action taken pursuant to this Section 11 shall
relieve any Selling Shareholder so defaulting from liability, if any, in respect
of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the Representatives and the Company and the
non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or Date of Delivery for a period not exceeding seven days in order to
effect any required change in the Registration Statement or Prospectus or in any
other documents or arrangements.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at [NAME AND ADDRESS OF
LEAD UNDERWRITER]; notices to the Company shall be
26
directed to it at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, attention of
Xxxxxxx Xxxxxxx, Esq., with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, attention of Xxxxxx Xxxxx, Esq., and notices
to Blackstone shall be directed to The Blackstone Group, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxx X. Xxxxxxxx, with a copy to
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
attention of Xxxxxx Xxxxx, Esq.
SECTION 13. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Underwriters, the
Company and the Selling Shareholders and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Shareholders and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or such Terms Agreement or any provision herein or therein contained. This
Agreement and the applicable Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT AND ANY APPLICABLE
TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
27
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
By:
--------------------------------------------
Name:
Title:
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANK FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP II L.P.
By:
--------------------------------------------
As Attorney-in-Fact
28
CONFIRMED AND ACCEPTED, as of the date first above written:
By: [NAME OF LEAD UNDERWRITER]
By
--------------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in the
applicable Terms Agreement.
29
SCHEDULE A
SELLING SHAREHOLDERS
Sch A-1
SCHEDULE B
SUBSIDIARIES
Percent Owned by
Subsidiary Organized Immediate Parent
---------- --------- ----------------
American Axle & Manufacturing Holdings, Inc. Delaware
American Axle & Manufacturing, Inc. Delaware 100%
AAM Receivables Corp. Delaware 100%
American Axle International Sales, Ltd. U.S. Virgin Islands 100%
Colfor Manufacturing Inc. Delaware 100%
MSP Industries Corporation Michigan 100%
MSP Team, LLC Michigan 99% (1)
American Axle & Manufacturing de Mexico 99.99% (1)
Mexico Holdings S. de X.X. de C.V.
Guanajuato Gear & Axle de Mexico 99.99% (1)
Mexico S. de X.X. de C.V.
American Axle & Manufacturing Mexico 99.99% (1)
de Mexico S.A. de C.V.
AAM International Holdings, Inc. Delaware 100%
Albion Automotive (Holdings) Scotland 100%
Limited
Albion Automotive Scotland 100%
Limited
Farington Components England 100%
Limited
AAM Comercio e Participacoes Brazil 99.99% (1)
Ltda.
AAM do Brasil Ltda. Brazil 99.2%
--------------
(1) Remaining Shares owed by the Company or its subsidiaries
Sch B-1
SCHEDULE C
PERSONS SUBJECT TO LOCK-UP
Sch C-1
Exhibit A
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
(a Delaware corporation)
TERMS AGREEMENT
____________ ____, 2003
To: American Axle & Manufacturing Holdings, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
We understand that the selling shareholders named below (the "Selling
Shareholders") propose to sell, acting severally and not jointly, the shares of
common stock, par value $.01 per share (the "Common Stock"), of American Axle &
Manufacturing Holdings, Inc. opposite their names set forth below (such
securities also being hereinafter referred to as the "Initial Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the number Initial Securities opposite their names
set forth below at the purchase price set forth below, and a proportionate share
of Option Securities set forth below, to the extent any are purchased.
SELLING SHAREHOLDERS
NUMBER OF
INITIAL
NAME OF SELLING SHAREHOLDERS SECURITIES
---------------------------- ----------
Blackstone Capital Partners II Merchant Bank Fund L.P. .............. _________
Blackstone Offshore Capital Partners II L.P.......................... _________
Blackstone Family Investment Partnership II L.P. .................... _________
UNDERWRITERS
--------
--------
--------
--------
--------
--------
TOTAL:
Ex. A-1
The Securities shall have the following terms:
Title: Common Stock, par value $.01 per share
Number of Initial Securities:
Number of Option Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled American Axle & Manufacturing Holdings, Inc. (a Delaware
corporation), [o] Shares of Common Stock, Purchase Agreement, dated [________
____], 2003 are hereby incorporated by reference in their entirety herein and
shall be deemed to be a part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. Terms defined in such
document are used herein as therein defined.
Ex. A-2
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ___________, 2003 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
By: [NAME OF LEAD UNDERWRITER]
By:
------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in this
Terms Agreement.
Accepted:
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
By::
----------------------------
Name:
Title:
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANK FUND X.X.
XXXXXXXXXX OFFSHORE CAPITAL PARTNERS II X.X.
XXXXXXXXXX FAMILY INVESTMENT PARTNERSHIP II L.P.
By:
----------------------------
As Attorney-in-Fact
Ex. X-0
Xxxxxxx X-0
FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX,
COUNSEL TO THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware
and has full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under the Purchase Agreement.
(ii) All outstanding shares of the Company's Common Stock, including the
Securities, have been duly authorized and validly issued, and all
outstanding shares of the Company's Common Stock, including the
Securities, are fully paid and nonassessable.
(iii) There are no preemptive rights under federal law, under the Delaware
General Corporation Law or under any agreement or other instrument
known to us to subscribe for or purchase the Securities. There are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Company's
capital stock pursuant to the Company's charter or by-laws or, except
as otherwise disclosed in the Registration Statement and except for
restrictions on transfer applicable to parties to the Stockholders'
Agreement or shares of the Company's Common Stock issued under the
Option Plan or the Replacement Plan (as such terms are defined in the
1934 Act documents incorporated by reference in the Prospectus (the
"Exchange Act Documents")), any agreement or other instrument known to
us.
(iv) The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
(v) The Registration Statement has become effective under the 1933 Act, and
the Prospectus was filed on [_______], 2003 pursuant to Rule 424(b)
and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued or
proceeding for that purpose has been instituted or threatened by the
Commission.
(vi) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements, with
any applicable requirements of the charter and by-laws of the Company
and the requirements of the New York Stock Exchange.
(vii) The statements made in the description of the Company's Common Stock
incorporated by reference in the Prospectus, insofar as they purports
to constitute summaries of the terms of the Company's Common Stock
(including the Securities), constitutes an accurate summary of the
terms of such Common Stock in all material respects.
(viii) The statements made in the description of the Company's Common Stock
incorporated by reference in the Prospectus and the statements made in
the Registration Statement under Item 15, insofar as they purport to
constitute summaries of the terms of New York
Ex. B-1-1
or federal statutes or the Delaware General Corporation Law, rules and
regulations thereunder, legal proceedings or the Company's charter and
bylaws, constitute accurate summaries of the matters summarized in all
material respects.
(ix) No filing, consent, approval, authorization, registration or
qualification of or with any federal or New York governmental agency or
body or any Delaware governmental agency or body acting pursuant to the
Delaware General Corporation Law or, to such counsel's knowledge, any
federal or New York court or any Delaware court acting pursuant to the
Delaware General Corporation Law is required for the compliance by the
Company with all of the provisions of the Purchase Agreement, except
for the registration under the 1933 Act of the Securities, 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.
(x) The execution and delivery by the Company of the Purchase Agreement and
the applicable Terms Agreement, the consummation by the Company of the
transactions provided for in the Purchase Agreement and the applicable
Terms Agreement and the compliance by the Company with all of the
provisions of the Purchase Agreement and the Terms Agreement do not and
will not, whether with or without the giving of notice or lapse of time
or both, breach or result in a default or a Repayment Event (as defined
in Section 1(a)(xi) of the Purchase Agreement) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, any
indenture, mortgage, deed of trust, loan agreement or credit agreement,
note, lease or any other agreement or instrument filed as an exhibit to
the Registration Statement or the Exchange Act Documents (except for
such breaches or defaults or liens, charges or encumbrances that would
not have a Material Adverse Effect), nor will such action violate the
charter or bylaws of the Company, or any federal or New York statute or
the Delaware General Corporation Law or any rule or regulation that has
been issued pursuant to any federal or New York statute or the Delaware
General Corporation Law or any judgment or order known to us issued
pursuant to any federal or New York statute or the Delaware General
Corporation Law by any court or governmental agency or body or court
having jurisdiction over the Company or any of its subsidiaries or any
of their properties, assets or operations.
(xi) To such counsel's knowledge, there are no contracts or agreements
between the Company and any person granting such person the right
(other than rights which have been waived) to require the Company to
include any securities of the Company owned or to be owned by such
person in the securities registered pursuant to the Registration
Statement.
(xii) The Company is not an "investment company" within the meaning of and
subject to regulation under the Investment Company Act of 1940, as
amended.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel
employed by the Company, representatives of the independent public accountants
for the Company, representatives of the
Ex. B-1-2
Underwriters and counsel for the Underwriters, at which conferences the contents
of the Registration Statement and Prospectus and related matters were discussed
and, although such counsel 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 except as set forth in
paragraphs (vii) and (viii), above and have not made any independent check or
verification thereof, on the basis of the foregoing, (i) in such counsel's
opinion, the Registration Statement or any amendment thereto, including any Rule
462(b) Registration Statement, the Rule 430A Information and the Rule 434
Information (if applicable), as the time such Registration Statement or any such
amendment became effective or at the date of the applicable Terms Agreement, and
the Prospectus and the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as applicable,
complied as to form in all material respects with the requirements of the 1933
Act or the 1934 Act, as applicable, and the applicable rules and regulations of
the Commission thereunder, except that such counsel need express no opinion with
respect to the financial statements or other financial data contained in the
Registration Statement or the Prospectus, and (ii) such counsel has no reason to
believe that either the Registration Statement or any amendment thereto,
including the Rule 430A Information and Rule 434 Information (if applicable), at
the time such Registration Statement or any such amendment became effective or
at the date of the applicable Terms Agreement, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or the
Prospectus or any amendment or supplement thereto, at the time the Prospectus
was issued, at the time any such amended or supplemented Prospectus was issued
or at the Closing Time, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that such counsel need express no opinion with respect to
the financial statements or other financial data contained in the Registration
Statement or the Prospectus.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and public officials which are furnished to the Representatives.
In addition, such counsel may state their opinion is limited to matters governed
by the laws of the State of New York, the corporate law of State of Delaware and
the federal law of the United States.
Ex. B-1-3
Exhibit B-2
FORM OF OPINION OF XXXXXXX X. XXXXXXX, ESQ.,
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(ii) Each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, and each such Subsidiary has corporate power and
authority to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction where such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed in
the Registration Statement, all of the issued and outstanding capital
of each Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and, to such counsel's knowledge, is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary.
(iii) To such counsel's knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company or
any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed as an exhibit to the
Registration Statement or the documents incorporated by reference
therein, except for such defaults that would not result in a Material
Adverse Effect.
(iv) To such counsel's knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement and the applicable Terms
Agreement or the performance by the Company of its obligations
thereunder.
Ex. B-2-1
(v) To such counsel's knowledge, no filing, consent, approval,
authorization, registration or qualification of or with any
governmental agency or body or any court, is required for the
compliance by the Company with all of the provisions of the Purchase
Agreement or the applicable Terms Agreement, except for the
registration under the 1933 Act of the Securities, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(vi) If the Prospectus contains a "Capitalization" section, the authorized,
issued and outstanding capital stock of the Company is as set forth in
the column entitled "Actual" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to the Purchase Agreement or
pursuant to reservations, agreements or employee benefit plans referred
to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus).
(vii) None of the outstanding shares of Common Stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company; and the sale of the Securities by the
Selling Shareholders is not subject to the preemptive or other similar
rights of any securityholder of the Company.
(viii) The execution, delivery and performance by the Company of the Purchase
Agreement and the applicable Terms Agreement, the compliance by the
Company with all of the provisions thereof and the consummation of the
transactions contemplated in the Purchase Agreement and the applicable
Terms Agreement and in the Registration Statement do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with, breach or result in a default or Repayment Event (as
defined in Section 1(xi) of the Purchase Agreement) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to such
counsel, to which the Company or any subsidiary is a party or by which
it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result
in a violation of the charter or bylaws of the Company or any
subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to such counsel, of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
(ix) To such counsel's knowledge, the Company and its subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and to such counsel's knowledge, neither the Company
nor any of its subsidiaries has received any notice or is
Ex. B-2-2
otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(x) There are no statutes or regulations material to the Company or its
operations or, to such counsel's knowledge, pending or threatened legal
or governmental proceedings required to be described in the Prospectus
which are not described as required, or any contracts, instruments or
other documents of a character required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement or the documents incorporated by reference
therein which are not described and filed as required; and all
descriptions in the Registration Statement of contracts and other
agreements to which the Company or its subsidiaries are a party are
complete and accurate in all material respects.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel to
the Company, representatives of the independent public accountants for the
Company, representatives of the Underwriters and counsel for the Underwriters,
at which conferences the contents of the Registration Statement and Prospectus
and related matters were discussed and, although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus except as set forth in paragraphs (vi) and (x) above and has not made
any independent check or verification thereof, on the basis of the foregoing,
nothing has come to such counsel's attention that leads him to believe that
either the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), at the time such
Registration Statement or any such amendment became effective or at the date of
the applicable Terms Agreement, contained an untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, or the Prospectus or any
amendment or supplement thereto, at the time the Prospectus were issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except that such counsel need express no opinion with
respect to the financial statements or other financial data contained in the
Registration Statement or the Prospectus.
Ex. B-2-3
Exhibit C
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR
OTHER STOCKHOLDERS PURSUANT TO SECTION 5(k)
_________, 2003
[NAME AND ADDRESSES
OF UNDERWRITERS]
Re: American Axle & Manufacturing Holdings, Inc. - Public Offering
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
American Axle & Manufacturing Holdings, Inc., a Delaware corporation (the
"Company"), understands that [NAME OF LEAD UNDERWRITER] ("Lead Underwriter") and
[NAMES OF UNDERWRITERS] propose to enter into an Underwriting Agreement (the
"Underwriting Agreement") with the Company providing for the public offering of
shares (the "Securities") of the Company's common stock, par value $0.01 per
share (the "Common Stock"). In recognition of the benefit that such an offering
will confer upon the undersigned as a stockholder and an officer and/or director
of the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the applicable Terms Agreement that, during a period
of [o] days from the date of the applicable Terms Agreement, the undersigned
will not, without the prior written consent of the Lead Underwriter, directly or
indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise lend, transfer or dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or cause the Company to file
any registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:
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Print Name:
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Ex. C-1
