EXHIBIT 1.1
SHARES
XXXXX LEMMERZ INTERNATIONAL, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[ ], 2004
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
LAZARD FRERES & CO. LLC
UBS SECURITIES LLC
As Representatives of the several
Underwriters named in Schedule 1
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Xxxxx Lemmerz International, Inc., a Delaware corporation (the
"Company"), and AP Wheels, LLC (the "SELLING STOCKHOLDER"), propose to sell an
aggregate of 10,800,000 shares (the "FIRM STOCK") of the Company's common stock
par value $0.01 per share (the "COMMON STOCK"). Of the 10,800,000 shares of the
Firm Stock, 5,453,017 are being sold by the Company and 5,346,983 are being sold
by the Selling Stockholder. In addition, the Company proposes to grant to the
Underwriters named in Schedule 1 hereto (the "UNDERWRITERS") an option to
purchase up to an additional 1,620,000 shares of the Common Stock on the terms
and for the purposes set forth in Section 3 (the "OPTION STOCK"). The Firm Stock
and the Option Stock, if purchased, are hereinafter collectively called the
"STOCK." This is to confirm the agreement concerning the purchase of the Stock
from the Company and the Selling Stockholder by the Underwriters.
1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3, and
amendments thereto, with respect to the Stock have (i) been
prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "SECURITIES ACT"),
and the rules and regulations (the "RULES AND REGULATIONS") of
the Securities and Exchange Commission (the "COMMISSION")
thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities
Act. Copies of such registration statement and each of the
amendments thereto have been delivered by the Company to you
as the representatives (the
"REPRESENTATIVES") of the Underwriters. As used in this
Agreement, "EFFECTIVE TIME" means the date and the time as of
which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared
effective by the Commission; "EFFECTIVE DATE" means the date
of the Effective Time; "PRELIMINARY PROSPECTUS" means each
prospectus included in such registration statement, or
amendments thereof, before it became effective under the
Securities Act and any prospectus filed with the Commission by
the Company with the consent of the Representatives pursuant
to Rule 424(a) of the Rules and Regulations; "REGISTRATION
STATEMENT" means such registration statement, as amended at
the Effective Time, including all information contained in the
final prospectus filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations and deemed to be a part of
the registration statement as of the Effective Time pursuant
to paragraph (b) of Rule 430A of the Rules and Regulations,
and including any registration registering additional shares
of Common Stock filed with the Commission pursuant to Rule
462(b) of the Rules and Regulations; and "PROSPECTUS" means
such final prospectus, as first filed with the Commission
pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules
and Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary
Prospectus. Reference made herein to any Preliminary
Prospectus or to the Registration Statement or Prospectus
shall be deemed to refer to and include all documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or of the Registration Statement or
Prospectus, as the case may be, and any reference to any
amendment or supplement to any Preliminary Prospectus or to
the Registration Statement or Prospectus shall be deemed to
refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), after
the date of such Preliminary Prospectus or such Registration
Statement or Prospectus, as the case may be, and incorporated
by reference in such Preliminary Prospectus or such
Registration Statement or Prospectus, as the case may be.
(b) Each of the Preliminary Prospectus, Registration
Statement and Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus at
the time of filing thereof, conformed or will conform in all
respects to the requirements of the Securities Act and the
Rules and Regulations and does not and will not, as of the
applicable effective date (as to the Registration Statement
and any amendment thereto) and as of the applicable filing
date (as to the Prospectus and any amendment or supplement
thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary (in the case of the Prospectus or any Preliminary
Prospectus, in the light of the circumstances under which
made) to make the statements therein not misleading; provided
that no representation or warranty is made as to information
contained in or
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omitted from the Preliminary Prospectus, Registration
Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by or on
behalf of any Underwriter or the Selling Stockholder
specifically for inclusion therein.
(c) The documents incorporated by reference in the
Preliminary Prospectus or the Prospectus, when they were filed
with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the Rules and
Regulations, and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading
in light of the circumstances in which they were made; and any
further documents so filed and incorporated by reference in
the Prospectus, when such documents are filed with Commission,
will conform in all material respects to the requirements of
the Exchange Act and the Rules and Regulations and will not
contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein
not misleading in light of the circumstances in which they
were made.
(d) The Company is not, nor after giving effect to
the transactions contemplated and the application of the
proceeds thereof as described under the heading "Use of
Proceeds" in the Final Prospectus will be, an "investment
company" within the meaning of the Investment Company Act.
(e) The Company and each of its subsidiaries (as
defined in Section 17) has been duly incorporated, formed or
organized and is validly existing as a corporation, limited
liability company or partnership in good standing (to the
extent such concept exists) under the laws of its respective
jurisdiction in which it is incorporated, formed or organized
with full corporate, limited liability company or partnership
power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation, limited liability company
or partnership and is in good standing under the laws of each
jurisdiction that requires such qualification; except where
the failure to be in good standing or duly qualified,
incorporated, formed or organized, or to have such power or
authority would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on
the business, financial condition or results of operations of
the Company and its subsidiaries taken as a whole (a "MATERIAL
ADVERSE EFFECT").
(f) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued and
outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and
non-assessable and conform to the description thereof
contained in the Prospectus; and all the issued and
outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized
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and validly issued and are fully paid and non-assessable and
(except for (1) the preferred stock of HLI Operating Company,
Inc., and (2)(A) directors' qualifying shares and (B) other de
minimis amounts of shares required to be issued to third
parties pursuant to local law requirements) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances or claims, except as such capital stock has been
pledged as security under the Company's senior secured credit
agreement dated as of June 3, 2003, among HLI Operating
Company, Inc., the Company, the Lenders and the Issuers (each,
as defined therein), Citicorp North America, Inc., as
administrative agent, Xxxxxx Commercial Paper, Inc., as
syndication agent and General Electric Capital Corporation, as
a lender and the documentation agent, and the other lenders
party thereto, as amended as of the date hereof (the "CREDIT
AGREEMENT").
(g) The shares of the Stock to be sold by the Selling
Stockholder to the Underwriters hereunder have been duly
authorized and validly issued, are fully paid and
non-assessable.
(h) The shares of the Stock to be sold by the Company
to the Underwriters hereunder have been duly authorized, and
when delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable; and the Stock conforms
to the description thereof contained in the Prospectus.
(i) Schedule 2 hereto sets forth each of the
Company's direct and indirect domestic subsidiaries as of the
date hereof.
(j) The statements in the Final Prospectus under the
headings "Risk Factors - Legal proceedings - we will be
subject to claims made after the date that we filed for
bankruptcy and other claims that were not discharged in the
bankruptcy proceeding, which could have a significant negative
impact on our results of operations and profitability," "Risk
Factors - Legal proceedings - we are being investigated by the
Securities and Exchange Commission," "Risk Factors -
Environmental matters - we are subject to potential exposure
to environmental liabilities," "Business - Environmental
Compliance," "Business - Legal Proceedings," "The Bankruptcy
Case," "Description of Indebtedness," "Description of Capital
Stock" and "Material U.S. Federal Tax Considerations for
Non-U.S. Holders of Our Common Stock" (insofar as such
statements purport to summarize certain U.S. federal income
tax consequences with respect to an investment in the Stock),
fairly summarize, in all material respects, the matters
therein described.
(k) This Agreement has been duly authorized, executed
and delivered by the Company.
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(l) The Company has all requisite corporate power and
authority, and has taken all requisite corporate action
necessary to enter into and perform its obligations under this
Agreement.
(m) None of the execution and delivery of this
Agreement, the consummation of any other of the transactions
herein contemplated, nor the performance by the Company of its
obligations hereunder will conflict with or result in a breach
or violation or imposition of any lien, charge or encumbrance
upon any property or asset of the Company or any of its
subsidiaries pursuant to (i) the certificate of incorporation,
by-laws or other organizational documents of the Company or
any of its subsidiaries; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant
or instrument to which the Company or any of its subsidiaries
is a party or bound or to which their property is subject; or
(iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of
any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company or any of its subsidiaries or
any of its or their properties, except (x) with respect to any
foreign subsidiary of the Company that had assets of less than
$10 million at January 31, 2003, and revenues of less than $10
million for the year ended January 31, 2003 (the "NON-MATERIAL
SUBSIDIARIES") in the case of clause (i) above, for such
conflicts, breaches, violations or impositions that would not
reasonably be expected to have a Material Adverse Effect and
(y) in the case of clauses (ii) and (iii) above, for such
conflicts, breaches, violations or impositions that would not
reasonably be expected to (1) have a Material Adverse Effect
or (2) have a material adverse effect on the performance of
this Agreement.
(n) Except as described in the Prospectus and other
than the registration rights agreement, dated as of June 3,
2003, among HLI Operating Company, Inc., the guarantors party
thereto, Citigroup Global Markets Inc. and Xxxxxx Brothers
Inc., there are no contracts, agreements or understandings
between the Company and any person granting such person the
right to require the Company to file a registration statement
under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(o) The consolidated historical financial statements
and schedules of, as relevant, the Company and its
consolidated subsidiaries or the predecessor of the Company
and its consolidated subsidiaries included in each Preliminary
Prospectus, the Registration Statement and the Prospectus
present fairly in all material respects the financial
condition,
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results of operations and cash flows of, as relevant, the
Company or the predecessor of the Company and their respective
consolidated subsidiaries as of the dates and for the periods
indicated, comply as to form with the applicable accounting
requirements of the Securities Act and have been prepared in
conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial
data set forth under the caption "Selected Historical
Consolidated Financial Data" in each Preliminary Prospectus,
the Registration Statement and the Prospectus fairly present,
on the basis stated therein, the information included therein.
The pro forma financial statements included in each
Preliminary Prospectus, the Registration Statement and the
Prospectus include assumptions that provide a reasonable basis
for presenting the significant effects directly attributable
to the events and items described therein on the basis, and
subject to the limitations, described therein; the related pro
forma adjustments give effect in all material respects to
those assumptions; and the pro forma adjustments reflect in
all material respects the proper application of those
adjustments to the historical financial statement amounts. The
pro forma financial statements included in the Prospectus
comply as to form in all material respects with the applicable
accounting requirements of Regulation S-X under the Securities
Act.
(p) No action, suit or proceeding by or before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
property or, to the Company's knowledge, the current or prior
directors or officers of the Company or the predecessor to the
Company is pending or, to the best knowledge of the Company,
threatened that (i) would reasonably be expected to have a
material adverse effect on the performance of this Agreement,
or the consummation of any of the transactions contemplated
hereby; or (ii) would reasonably be expected to have a
Material Adverse Effect, except as set forth in or
contemplated in the Prospectus (exclusive of any amendment or
supplement thereto).
(q) The Company and each of its subsidiaries own,
possess, license, lease or have other rights to use, all such
properties (including, without limitation, Intellectual
Property, as defined below) as are necessary to the conduct of
their respective operations as presently conducted, except
where the failure to own, possess, license, lease or have
other rights to use such property would not reasonably be
expected to have a Material Adverse Effect. Other than as
described in the Prospectus there is no infringement by third
parties of any of the Company's or any of its subsidiaries'
patents, patent applications, trade and service marks, trade
and service xxxx registrations, trade names, copyrights,
licenses, inventions, trade secrets, technology, know-how and
other intellectual property (collectively, the "INTELLECTUAL
PROPERTY") except such
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infringements that would not reasonably be expected to have a
Material Adverse Effect.
(r) Except for the registration of the Stock under
the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties or assets is required for the
execution, delivery and performance of this Agreement by the
Company and the consummation by the Company of the
transactions contemplated hereby.
(s) Neither the Company nor any of its subsidiaries
has sustained, since the date of the latest audited financial
statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any other change or development
which has and could reasonably be expected to have a Material
Adverse Effect otherwise than as set forth or contemplated in
the Prospectus.
(t) To the Company's knowledge, KPMG LLP, who have
certified certain financial statements of the Company and its
consolidated subsidiaries, whose report is included in the
Prospectus and who have delivered the initial letter referred
to in Section 9(f) hereof, are independent public accountants
with respect to the Company within the meaning of the
Securities Act and the Rules and Regulations.
(u) The Company and its subsidiaries have filed all
foreign, federal, state and local tax returns that are
required to be filed or have requested extensions thereof
(except in any case in which the failure so to file would not
have a Material Adverse Effect) and have paid all taxes
required to be paid by them and any other assessment, fine or
penalty levied against them, to the extent that any of the
foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good
faith or as would not have a Material Adverse Effect.
(v) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations, or which are required to be
described in the documents incorporated by reference in the
Prospectus or filed as exhibits thereto by
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the Exchange Act or the Rules and Regulations, which have not
been described in the Prospectus or filed or incorporated by
reference as exhibits to the Registration Statement as
permitted by the Rules and Regulations or filed or
incorporated by reference as exhibits to the documents
incorporated by reference in the Prospectus as permitted by
the Rules and Regulations.
(w) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements
and to maintain accountability for its assets, (C) access to
its assets is permitted only in accordance with management's
authorization and (D) the recorded accountability for its
assets is compared with existing assets at reasonable
intervals.
(x) No labor problem or dispute with the employees of
the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is overtly threatened, and the
Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its
subsidiaries' principal suppliers, contractors or customers,
that would reasonably be expected, in each case, to have a
Material Adverse Effect.
(y) No relationship, direct or indirect, exists
between or among the Company on the one hand, and the
directors, officers, stockholders, customers or suppliers of
the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
(z) Since the date of the most recent financial
statements included in the Prospectus (exclusive of any
amendment or supplement thereto), except as set forth in the
Prospectus, there has been no change that would reasonably be
expected to have a Material Adverse Effect.
(aa) The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are
engaged; and there are no claims by the Company or any of its
subsidiaries under any such policy or instrument as to which
any insurance company has notified the Company or any of its
subsidiaries that it is denying or intends to deny liability
or to defend under a reservation of rights clause that would
reasonably be expected to have a Material Adverse Effect.
(bb) The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
(cc) The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations
issued by the appropriate
8
federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, except where the failure
to possess such licenses, certificates, permits and other
authorizations would not reasonably be expected to have a
Material Adverse Effect, and none of the Company nor any such
subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate,
authorization or permit which, if the subject of an
unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(dd) Since the date as of which information is given
in the Prospectus through the date hereof, and except as may
otherwise be disclosed in the Prospectus, the Company has not
(i) issued or granted any securities, other than pursuant to
employee stock option or benefit plans, or other employee
compensation plans, in each case out of shares reserved for
issuance as described in the Prospectus, (ii) incurred any
material liability or obligation, direct or contingent, other
than liabilities and obligations which were incurred in the
ordinary course of business, (iii) entered into any material
transaction not in the ordinary course of business or (iv)
declared or paid any dividend on its capital stock.
(ee) Neither the Company nor any of its subsidiaries
(i) is in violation of its charter or by-laws, (ii) is in
default, in any material respect, and no event has occurred
which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or
to which any of its properties or assets is subject, or (iii)
is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or
assets may be subject except, in the case of (i), (ii) and
(iii), above, for such violations and defaults that would not,
have a Material Adverse Effect.
(ff) Neither the Company nor any of its subsidiaries,
nor to the Company's knowledge, any director, officer,
employee or any agent or other person associated with or
acting on behalf of the Company or any of its subsidiaries,
has used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful
payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977; or
made any bribe, unlawful rebate or payoff, influence payment,
kickback or other unlawful payment in connection with the
business of the Company.
(gg) The Company and each of its subsidiaries are (i)
in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the
protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
9
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received and
are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws
to conduct their respective businesses, and (iii) have not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or
contaminants, except (1) as set forth in the Prospectus or (2)
where such non-compliance with Environmental Laws, failure to
receive or be in compliance with required permits, licenses or
other approvals and such liability would not have a Material
Adverse Effect; except as set forth in the Prospectus, none of
the Company nor any of its subsidiaries has been named as a
"potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended.
(hh) The Company and each of its subsidiaries have
fulfilled their obligations, if any, under the minimum funding
standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
and the regulations and published interpretations thereunder
with respect to each "PLAN" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in
which employees of the Company are eligible to participate,
except where the failure to fulfill such obligations would not
reasonably be expected to have a Material Adverse Effect, and
each such plan is in compliance with the presently applicable
provisions of ERISA and such regulations and published
interpretations, except where the failure to be in compliance
would not reasonably be expected to have a Material Adverse
Effect; the Company has not incurred any unpaid liability to
the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such
plan under Title IV of ERISA, except where such liability
would not reasonably be expected to have a Material Adverse
Effect.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the Offering shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Initial Purchaser.
2. Representations, Warranties and Agreements of the Selling
Stockholder. The Selling Stockholder represents, warrants and agrees that:
(a) The Selling Stockholder has, and immediately
prior to the First Delivery Date (as defined in Section 5
hereof) the Selling Stockholder will have, good and valid
title to the shares of Stock to be sold by the Selling
Stockholder hereunder on such date, free and clear of all
liens, encumbrances, equities or claims; and upon delivery of
such shares and payment therefor pursuant hereto, good and
valid title to such shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters.
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(b) The Selling Stockholder has full right, power and
authority to enter into this Agreement; the execution,
delivery and performance of this Agreement by the Selling
Stockholder and the consummation by the Selling Stockholder of
the transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Selling Stockholder is a party or by
which the Selling Stockholder is bound or to which any of the
property or assets of the Selling Stockholder is subject, nor
will such actions result in any violation of the provisions of
the constituent documents of the Selling Stockholder or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the
Selling Stockholder or the property or assets of the Selling
Stockholder; and, except for the registration of the Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as will have
been obtained prior to the date hereof as may be required
under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement by the Selling Stockholder and the consummation by
the Selling Stockholder of the transactions contemplated
hereby.
(c) The Registration Statement and the Prospectus and
any amendments or supplements to any Preliminary Prospectus,
the Registration Statement or the Prospectus, when they become
effective or are filed with the Commission, as the case may
be, do not and will not, as of the applicable effective date
(as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (as to any Preliminary
Prospectus, the Registration Statement or the Prospectus and
any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; provided that this
paragraph (e) applies only to the extent that the statements
or omissions from the Registration Statement or the Prospectus
were or are based on written information provided by the
Selling Stockholder specifically for inclusion therein, it
being understood and agreed that for purposes of this Section
2 and indemnification obligations in Section 10, the only
information provided by the Selling Stockholder consists of
information relating to the Selling Stockholder under the
captions "Risk Factors - Influence on our board of directors
by significant stockholders-AP Wheels, LLC,
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Amalgamated Gadget, L.P. and our prepetition creditors hold a
significant percentage of our common stock and have selected
certain of our board members and influence certain aspects of
our business operations" and "Principal and Selling
Stockholders."
(d) The Selling Stockholder 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 the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of the Stock.
3. Purchase of the Stock by the Underwriters. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 5,453,017 shares of
the Firm Stock and the Selling Stockholder hereby agrees to sell 5,346,983
shares of the Firm Stock to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set forth opposite that Underwriter's name in Schedule 1
hereto. Each Underwriter shall be obligated to purchase from the Company and the
Selling Stockholder that number of shares of the Firm Stock which represents the
same proportion of the number of shares of the Firm Stock to be sold by the
Company and the Selling Stockholder as the number of shares of the Firm Stock
set forth opposite the name of such Underwriter in Schedule 1 represents of the
total number of shares of the Firm Stock to be purchased by all the Underwriters
pursuant to this Agreement. The respective purchase obligations of the
Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representatives may determine.
In addition, the Company grants to the Underwriters an option
to purchase up to 1,620,000 shares of Option Stock. Such option is granted for
the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 5 hereof. Shares of Option Stock shall be
purchased severally for the account of the Underwriters in proportion to the
number of shares of Firm Stock set opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Stock other than in 100 share
amounts. The price of both the Firm Stock and any Option Stock shall be $ per
share.
The Company and the Selling Stockholder shall not be obligated
to deliver any of the Stock to be delivered on any Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
4. Offering of Stock by the Underwriters. Upon authorization
by the Representatives of the release of the Firm Stock, the several
Underwriters propose to offer the Firm Stock for sale upon the terms and
conditions set forth in the Prospectus.
5. Delivery of and Payment for the Stock. Delivery of and
payment for the Firm Stock shall be made at the office of Weil, Gotshal & Xxxxxx
LLP, 000 Xxxxx
00
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York City time, on the
fourth full business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the Representatives
and the Company. This date and time are sometimes referred to as the "FIRST
DELIVERY DATE." On the First Delivery Date, the Company and the Selling
Stockholder shall deliver or cause to be delivered certificates representing the
Firm Stock to the Representatives for the account of each Underwriter against
payment to or upon the order of the Company and the Selling Stockholder of the
purchase price by wire transfer in immediately available funds. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Firm Stock shall be registered in such names and
in such denominations as the Representatives shall request in writing not less
than two full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Firm Stock,
the Company and the Selling Stockholder shall make the certificates representing
the Firm Stock available for inspection by the Representatives in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior to
the First Delivery Date.
The option granted in Section 3 will expire 30 days after the
date of this Agreement and may be exercised in whole or in part from time to
time by written notice being given to the Company by the Representatives. Such
notice shall set forth the aggregate number of shares of Option Stock as to
which the option is being exercised, the names in which the shares of Option
Stock are to be registered, the denominations in which the shares of Option
Stock are to be issued and the date and time, as determined by the
Representatives, when the shares of Option Stock are to be delivered; provided,
however, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the second business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date
on which the option shall have been exercised. The date and time the shares of
Option Stock are delivered are sometimes referred to as a "SECOND DELIVERY DATE"
and the First Delivery Date and any Second Delivery Date are sometimes each
referred to as a "DELIVERY DATE").
Delivery of and payment for the Option Stock shall be made at
the place specified in the first sentence of the first paragraph of this Section
5 (or at such other place as shall be determined by the Representatives) at
10:00 A.M., New York City time, on such Second Delivery Date. On such Second
Delivery Date, the Selling Stockholder shall deliver or cause to be delivered
the certificates representing the Option Stock to the Representatives for the
account of each Underwriter against payment to or upon the order of the Selling
Stockholder of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Option Stock shall be registered
in such names and in such denominations as the Representatives shall request in
the aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Selling Stockholder
shall make the certificates representing the Option Stock available for
inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to such Second Delivery
Date.
13
6. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by
the Representatives and to file such Prospectus pursuant to
Rule 424(b) under the Securities Act not later than
Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule
430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or
to the Prospectus except as permitted herein; to advise the
Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to
furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to each of the
Representatives and to counsel for the Underwriters a signed
copy of the Registration Statement as originally filed with
the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representatives such
number of the following documents as the Representatives shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each
amendment thereto (in each case excluding exhibits other than
this Agreement), and (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if
the delivery of a prospectus is required at any time after the
Effective Time in connection with the offering or sale of the
Stock, or any other securities relating thereto, and if at
such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the
Securities Act, to notify the Representatives and, upon their
request, to
14
prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the reasonable
judgment of the Company or the Representatives, be required by
the Securities Act or the Rules and Regulations or requested
by the Commission;
(e) Prior to filing with the Commission any amendment
to the Registration Statement or supplement to the Prospectus
or any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Representatives
and counsel for the Underwriters and obtain the consent of the
Representatives to the filing, which consent may not be
unreasonably withheld, delayed or conditioned;
(f) As soon as practicable after the Effective Date,
to make generally available to the Company's security holders
and to deliver to the Representatives an earnings statement of
the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the
Company, Rule 158) (it being understood that such delivery
requirements shall be deemed met by the Company's reporting
requirements pursuant to the Exchange Act and the Rules and
Regulations);
(g) For a period of two years following the Effective
Date, to furnish to the Representatives copies of all
materials furnished by the Company to its shareholders and all
public reports and all reports and financial statements
furnished by the Company to the principal national securities
exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder; provided, however,
that the Company need not provide any information which is
made available on the SEC's XXXXX database;
(h) Promptly from time to time to take such action as
the Representatives may reasonably request to qualify the
Stock for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Stock; provided
that in connection therewith the Company shall not be required
to qualify as a foreign corporation or file a general consent
to service of process in any jurisdiction;
15
(i) For a period of 90 days from the date of the
Prospectus, not to, directly or indirectly, (1) (A) offer for
sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock or
securities convertible into or exchangeable for Common Stock
(other than the Stock and shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to
currently outstanding options, warrants or rights), or (B)
sell or grant options, rights or warrants with respect to any
shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the grant of options
or restricted stock units pursuant to option plans or
incentive compensation plans existing on the date hereof or
subsequently adopted by the Board of Directors of the
Company), or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such
shares of Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of
Common Stock or other securities, in cash or otherwise, other
than, in each case, the issuance of shares or options in
acquisitions in which the acquiror of such shares or options
agrees to the foregoing restrictions, and in each case without
the prior written consent of Xxxxxx Brothers Inc. on behalf of
the Underwriters; and to cause each director and executive
officer of the Company listed under the "Management" section
of the Prospectus to furnish to the Representatives, prior to
the First Delivery Date, a letter or letters, substantially in
the form of Exhibit A hereto; and
(j) The Stock has been approved for listing on the
NASDAQ National Market.
7. Further Agreements of the Selling Stockholder. The Selling
Stockholder agrees:
(a) To furnish to the Representatives, prior to the
First Delivery Date, a letter substantially in the form of
Exhibit B hereto.
(b) To deliver to the Representatives prior to the
First Delivery Date a properly completed and executed United
States Treasury Department Form W-8 (if the Selling
Stockholder is a non-United States person) or Form W-9 (if the
Selling Stockholder is a United States person.)
8. Expenses.
(a) The Company agrees to pay (i) the costs incident
to the authorization, issuance, sale and delivery of the Stock
and any stamp duties or other taxes payable in that
connection; (ii) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each
case, exhibits), any
16
Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this
Agreement; (iii) the costs of producing and distributing this
Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the stock; (iv)
the fees and expenses (not in excess, in the aggregate, of
$2500) of qualifying the Stock under the securities laws of
the several jurisdictions as provided in Section 6(h) and of
preparing, printing and distributing a Blue Sky Prospectus
(including related fees and expenses of counsel to the
Underwriters); (v) the costs and expenses of the Company
relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of
the Stock; and (vi) except as provided in paragraph (b) of
this Section 8, all other costs and expenses incident to the
performance of the obligations of the Company and the Selling
Stockholder under this Agreement; and the Selling Stockholder
shall reimburse the Company for such payments to the extent
provided in the registration agreement, dated as of October
30, 2003, by and between the Company and the Selling
Stockholder (the "Registration Agreement").
(b) The Selling Stockholder shall pay any transfer
taxes payable in connection with the sale of the shares of
Stock which the Selling Stockholder may sell to the
Underwriters.
(c) Except as provided in this Section 8 and in
Section 13, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel,
any transfer taxes on the Stock which they may sell and the
expenses of advertising any offering of the Stock made by the
Underwriters.
(d) The Company and the Selling Stockholder agree
that any failure of either of them to pay, or dispute between
them regarding the payment of expenses in connection with the
offer and sale of the Stock or as otherwise described in this
Section 8 shall be resolved as between the Company and the
Selling Stockholder pursuant to the Registration Agreement,
and that in no event will any such failure to pay or dispute
result in any payment by the Underwriters of such expenses.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Stockholder contained herein, to the performance by the Company
and the Selling Stockholder of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with
the Commission in accordance with Section 6(a); no stop order
suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for
17
inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been
complied with.
(b) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this
Agreement, the Stock, the Registration Statement and the
Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel
for the Underwriters, and the Company and the Selling
Stockholder shall have furnished to such counsel all documents
and information that they may reasonably request to enable
them to pass upon such matters.
(c) Skadden, Arps, Slate Xxxxxxx & Xxxx LLP shall
have furnished to the Representatives its written opinion, as
counsel to the Company, addressed to the Underwriters and
dated such Delivery Date, in form and substance reasonably
satisfactory to the Representatives, substantially in the form
of Exhibit C hereto.
(d) Xxxxxxx X. Xxxxxx, in his capacity as general
counsel to the company, shall have furnished to the
Representatives his written opinion, addressed to the
Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives,
substantially in the form of Exhibit D hereto.
(e) The counsel for the Selling Stockholder shall
have furnished to the Representatives their written opinion,
as counsel to the Selling Stockholder, addressed to the
Underwriters and dated the First Delivery Date, to the effect
that:
(i) This Agreement has been duly authorized,
executed and delivered by or on behalf of the Selling
Stockholder;
(ii) Immediately prior to the First Delivery
Date, the Selling Stockholder had good and valid
title to the shares of Stock to be sold by the
Selling Stockholder under this Agreement, free and
clear of all liens, encumbrances, equities or claims,
and full right, power and authority to sell, assign,
transfer and deliver such shares to be sold by the
Selling Stockholder hereunder; and
(iii) Good and valid title to the shares of
Stock to be sold by the Selling Stockholder under
this Agreement, free and clear of all liens,
encumbrances, equities or claims, will pass upon
delivery of such shares to each of the several
Underwriters who purchase such shares in good faith
and without notice of any such lien, encumbrance,
equity or claim or any other adverse claim within the
meaning of the Uniform Commercial Code.
18
In rendering such opinion, such counsel may (i) state that
their opinion is limited to matters governed by the Federal
laws of the United States of America, the laws of the State of
New York and the general corporate or partnership law, as the
case may be, of the state of the Selling Stockholder's
incorporation or organization, as the case may be, and that
such counsel is not admitted in the jurisdiction in which the
Selling Stockholder is incorporated or organized, as the case
may be and (ii) in rendering the opinion in Section 9(d)(ii)
above, rely upon a certificate of the Selling Stockholder in
respect of matters of fact as to ownership of and liens,
encumbrances, equities or claims on the shares of Stock sold
by the Selling Stockholder, provided that such counsel shall
state that they have no knowledge or information inconsistent
with that provided in such certificate.
(f) The Representatives shall have received from
Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriters, such
opinion or opinions, dated such Delivery Date, with respect to
the issuance and sale of the Stock, the Registration
Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall
have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass
upon such matters.
(g) At the time of execution of this Agreement, the
Representatives shall have received from KPMG LLP a letter, in
form and substance satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i)
confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the
Commission, and (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial information
is given in the Prospectus, as of a date not more than five
days prior to the date hereof), the conclusions and findings
of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public
offerings.
(h) With respect to the letter of KPMG LLP referred
to in the preceding paragraph and delivered to the
Representatives concurrently with the execution of this
Agreement (the "INITIAL LETTER"), the Company shall have
furnished to the Representatives a letter (the "BRING-DOWN
LETTER") of such accountants, addressed to the Underwriters
and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the
respective dates as of which specified financial
19
information is given in the Prospectus, as of a date not more
than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(i) The Company shall have furnished to the
Representatives a certificate, dated such Delivery Date,
executed on behalf of the Company by its Chairman of the
Board, its President or a Vice President and its chief
financial officer stating that:
(i) The representations, warranties and
agreements of the Company in Section 1 are true and
correct as of such Delivery Date; the Company has
complied with all its agreements contained herein;
and the conditions set forth in Sections 9(a) and
9(k) have been fulfilled; and
(ii) They have, on behalf of the Company,
carefully examined the Registration Statement and the
Prospectus and, to their knowledge (A) as of the
Effective Date, the Registration Statement and
Prospectus did not include any untrue statement of a
material fact and did not omit to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading, and (B)
since the Effective Date no event has occurred which
should have been set forth in a supplement or
amendment to the Registration Statement or the
Prospectus.
(j) The Selling Stockholder shall have furnished to
the Representatives on the First Delivery Date a certificate,
dated the First Delivery Date, signed by, or on behalf of, the
Selling Stockholder stating that the representations,
warranties and agreements of the Selling Stockholder contained
herein are true and correct as of the First Delivery Date and
that the Selling Stockholder has complied with all agreements
contained herein to be performed by the Selling Stockholder at
or prior to the First Delivery Date.
(k) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Prospectus any
loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated
in the Prospectus or (ii) since such date there shall not have
been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting
the general affairs, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of
20
which, in any such case described in clause (i) or (ii), is,
in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market or in the
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market,
shall have been suspended or the settlement of such trading
generally shall have been materially disrupted or minimum
prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United
States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic,
political or financial conditions, including without
limitation as a result of terrorist activities after the date
hereof (or the effect of international conditions on the
financial markets in the United States shall be such) as to
make it, in the judgment of a majority in interest of the
several Underwriters, impracticable or inadvisable to proceed
with the public offering or delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(m) The Nasdaq National Market shall have approved
the Stock for listing.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless
each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1933, as amended, from and against
any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases
and sales of Stock), to which that Underwriter, officer,
employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon,
(i)
21
any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment
or supplement thereto, or (B) in the slideshow prepared by the
Company and the Underwriters and the management presentation
to be taped and presented as a portion of the electronic road
show ("MARKETING MATERIALS"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment
or supplement thereto, or in any Marketing Materials any
material fact required to be stated therein or necessary to
make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to,
the Stock or the offering contemplated hereby, and that is
included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company
shall not be liable under this clause (iii) to the extent that
it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through
its gross negligence or willful misconduct), and shall
reimburse each Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss,
claim, damage, liability or action (i) arises out of, or is
based upon, any untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or
in any such amendment or supplement, in reliance upon and in
conformity with written information concerning such
Underwriter furnished to the Company through the
Representatives by or on behalf of any Underwriter
specifically for inclusion therein which information consists
solely of the information specified in Section 10(f); (ii)
arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any such amendment or supplement, in
reliance upon and in conformity with written information
concerning the Selling Stockholder furnished to the Company by
or on behalf of the Selling Stockholder specifically for
inclusion therein, or (iii) results solely from an untrue
statement of material fact contained in, or the omission of a
material fact from, such Preliminary Prospectus, which untrue
statement or omission was corrected in the Prospectus (as then
amended or supplemented) if the Underwriters sold shares to
the person alleging such loss, claim, damage, liability or
action without sending or giving, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as
22
then amended or supplemented) if the Company had previously
furnished copies thereof to the Underwriters within a
reasonable amount of time prior to such sale or such
confirmation, and the Underwriters failed to deliver the
corrected Prospectus, if required by law to have so delivered
it and if delivered would have cured the defect giving rise to
such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) The Selling Stockholder shall indemnify and hold
harmless each Underwriter, its officers and employees, and
each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and
sales of Stock), to which that Underwriter, officer, employee
or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in
any Preliminary Prospectus, Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall
reimburse each Underwriter, its officers and employees and
each such controlling person for any legal or other expenses
reasonably incurred by that Underwriter, its officers and
employees or controlling person in connection with
investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Selling Stockholder
shall be liable in any such case only to the extent that any
such loss, claim, damage, liability or action arises out of,
or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the
Prospectus or in any such amendment or supplement in reliance
upon and in conformity with written information concerning the
Selling Stockholder furnished to the Company specifically for
inclusion therein; provided further, however, that the
foregoing indemnity agreement with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter
who it shall be established failed to deliver a Prospectus (as
then amended and supplemented, provided by the Company to the
several Underwriters in the requisite quantity and on a timely
basis to permit proper delivery on or prior to the Closing
Date) to the person asserting any losses, claims, damages,
liabilities or judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, or caused by any omission or
23
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, if such material misstatement or omission or
alleged misstatement or omission was cured in such Prospectus
and such Prospectus was required by law to be delivered at or
prior to the written confirmation of such sale to such person.
However, in no event shall the Selling Stockholder be liable
under the provisions of this Section 10(b) for any amount in
excess of the aggregate amount of the proceeds the Selling
Stockholder received from the sale of the Stock pursuant to
this Agreement. The foregoing indemnity agreement is in
addition to any liability which the Selling Stockholder may
otherwise have to any Underwriter or any officer, employee or
controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company, its officers
and employees, each of its directors (including any person
who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company), the
Selling Stockholder, and each person, if any, who controls the
Company or the Selling Stockholder within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof,
to which the Company, the Selling Stockholder, or any such
director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment
or supplement thereto, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning
such Underwriter furnished to the Company through the
Representatives by or on behalf of that Underwriter
specifically for inclusion therein; and shall reimburse the
Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party
under this Section 10 of notice of any claim or the
commencement of any action, the
24
indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under Section 10(a),
10(b) or 10(c) hereof, notify the indemnifying party in
writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may
have under Section 10(a), 10(b) or 10(c), except to the extent
it has been materially prejudiced by such failure and,
provided further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under Section
10(a), 10(b) or 10(c). If any such claim or action shall be
brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that the indemnified party shall have the
right to employ separate counsel (including local counsel) and
the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the
indemnified party would, in the opinion of such counsel,
present such counsel with a conflict of interest; (ii) the
actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or
additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. No
indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be
unreasonably withheld, delayed or conditioned), settle or
compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or
proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with the
consent of the indemnifying party or if there be a final
judgment of the plaintiff in
25
any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this
Section 10 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under
Section 10(a), 10(b) or 10(c) in respect of any loss, claim,
damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the
Selling Stockholder on the one hand and the Underwriters on
the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, and the
Selling Stockholder on the one hand and the Underwriters on
the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company,
and the Selling Stockholder on the one hand and the
Underwriters on the other with respect to such offering shall
be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this
Agreement (before deducting expenses) received by the Company
and the Selling Stockholder, on the one hand, and the total
underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Stock purchased
under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the shares of the Stock
under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall
be determined by reference to whether the 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, the Selling Stockholder or the
Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling
Stockholder and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section
10 were to be 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 into
account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 10 shall be deemed
to include, for purposes of this Section 10(e), any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or
26
defending any such action or claim. Notwithstanding the
provisions of this Section 10(e), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the Stock underwritten by it
and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has
otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 10(e)
are several in proportion to their respective underwriting
obligations and not joint.
(f) The Underwriters severally confirm and the
Company acknowledges that the statements with respect to the
public offering of the Stock by the Underwriters set forth on
the cover page of, the legend concerning over-allotments on
the inside front cover page of the Prospectus, the first
paragraph appearing under the caption "Underwriting -
Commissions and Expenses," the language appearing under the
caption "Underwriting - Stabilization, Short Positions and
Penalty Bids," the language under the caption "Underwriting -
Foreign Securities Laws Restrictions" and the second sentence
appearing under the caption "Underwriting - Electronic
Distribution" in the Prospectus are correct and constitute the
only information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and
the Prospectus.
11. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
Stock which the defaulting Underwriter agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining non-defaulting Underwriters in Schedule
1 hereto; provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Stock on such Delivery Date if the
total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total number of shares of the Stock to be purchased on such Delivery Date, and
any remaining non-defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of shares of the Stock which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 3. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Stock to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
27
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option Stock)
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company or the Selling Stockholder, except that the Company will continue
to be liable for the payment of expenses to the extent set forth in Sections 8
and 13. As used in this Agreement, the term "Underwriter" includes, for all
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto who, pursuant to this Section 11, purchases Firm
Stock which a defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company and the Selling
Stockholder for damages caused by its default. If other underwriters are
obligated or agree to purchase the Stock of a defaulting or withdrawing
Underwriter, either the Representatives or the Company may postpone the Delivery
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement, the Prospectus or in any other document
or arrangement.
12. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company and the Selling Stockholder prior to delivery of and payment for the
Firm Stock if, prior to that time, any of the events described in Sections 9(k)
or 9(l), shall have occurred or if the Underwriters shall decline to purchase
the Stock for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If the Company or
the Selling Stockholder shall fail to tender the Stock for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or the Selling Stockholder to perform any agreement on its part to be
performed, or because any other condition to the Underwriters' obligations
hereunder required to be fulfilled by the Company or Selling Stockholder is not
fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Stock, and upon demand the Company shall pay the full amount thereof to the
Representatives and the Selling Stockholder shall reimburse the Company for such
payments to the extent provided in the Registration Agreement.
14. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, or facsimile transmission to Xxxxxx Brothers
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department (Fax: 000-000-0000), with a copy, in the
case of any notice pursuant to Section 11(d), to the Director
of Litigation, Office of the General Counsel, Xxxxxx Brothers
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company shall be delivered or sent by
mail, or facsimile transmission to the address of the Company
set forth in the
28
Registration Statement, Attention: Legal Department (Fax:
(000) 000 0000);
(c) if to the Selling Stockholder, shall be delivered
or sent by mail, or facsimile transmission to the Selling
Stockholder at Xxx Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000;
provided, however, that any notice to an Underwriter pursuant to Section 11(d)
shall be delivered or sent by mail, or facsimile transmission to such
Underwriter at its address set forth in its acceptance to the Representatives,
which address will be supplied to any other party hereto by the Representatives
upon request. Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Company and the Selling Stockholder
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf of
the Representatives and the Company and the Underwriters shall be entitled to
act and rely upon any request, consent, notice or agreement given or made by the
Selling Stockholder.
15. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
the Selling Stockholder and their respective personal representatives and
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Stockholder contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 10(c) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 15, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
16. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Stockholder and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
17. Definition of the Terms "Business Day" and "subsidiary".
For purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 under the
Securities Act.
18. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
29
19. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
30
If the foregoing correctly sets forth the agreement among the
Company the Selling Stockholder and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
XXXXX LEMMERZ INTERNATIONAL, INC.
By
----------------------------------------
Name:
Title:
AP WHEELS, LLC
BY: APOLLO MANAGEMENT V, L.P., AS MANAGER
BY: AIF MANAGEMENT, INC., ITS GENERAL
PARTNER
By
----------------------------------------
Name:
Title:
Accepted:
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
LAZARD FRERES & CO. LLC
UBS SECURITIES LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By: XXXXXX BROTHERS INC.
By:
-----------------------------------
Authorized Representative
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By:
-----------------------------------
Authorized Representative
SCHEDULE 1
Number of
Underwriters Shares
------------ --------
Xxxxxx Brothers Inc.....................................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated......................................
Citigroup Global Markets Inc............................................................
Lazard Freres & Co. LLC.................................................................
UBS Securities LLC......................................................................
Total
=========
SCHEDULE 2
EXHIBIT A
LOCK-UP LETTER AGREEMENT
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Citigroup Global Markets Inc.
Lazard Freres & Co. LLC
UBS Securities LLC
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned understands that you and certain other firms
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
providing for the purchase by you and such other firms (the "UNDERWRITERS") of
shares (the "SHARES") of Common Stock, par value $.01 per share (the "COMMON
STOCK"), of Xxxxx Lemmerz International, Inc., a Delaware corporation (the
"COMPANY"), and that the Underwriters propose to reoffer the Shares to the
public (the "OFFERING").
In consideration of the execution of the Underwriting
Agreement by the Underwriters, and for other good and valuable consideration,
the undersigned hereby irrevocably agrees that, without the prior written
consent of Xxxxxx Brothers Inc., on behalf of the Underwriters, the undersigned
will not, directly or indirectly, (i) offer for sale, sell, pledge, or otherwise
dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any shares of Common Stock (including, without limitation, shares of
Common Stock that may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission and shares of Common Stock that may be issued upon exercise of any
option or warrant) or securities convertible into or exchangeable for Common
Stock (other than the Shares) owned by the undersigned on the date of execution
of this Lock-Up Letter Agreement or on the date of the completion of the
Offering, (ii) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such shares of Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, for a period of 90 days after
the date of the final Prospectus relating to the Offering. The foregoing
sentence shall not apply to the sale of the Shares in the Offering.
Notwithstanding the foregoing, the undersigned may transfer
any shares of Common Stock either during his or her lifetime or on death by will
or by intestacy (i) in connection with the sale or transfer of securities of the
Company in connection with a sale of the Company pursuant to an offer made on
substantially the same terms to all of the Company's stockholders, of which the
Underwriters have been advised in writing or (ii) to a member of his family or
to a trust, the beneficiaries of which are exclusively the undersigned and/or a
member of his family, or to a charitable organization; provided, however, that
in any such case it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding the
shares transferred subject to the provisions of this Agreement, and there shall
be no further transfer of such shares except in accordance with this Agreement.
In furtherance of the foregoing, the Company and its Transfer
Agent are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Letter
Agreement.
It is understood that, if the Company notifies you that it
does not intend to proceed with the Offering, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Shares, we will be released from our
obligations under this Lock-Up Letter Agreement. We will also be released from
our obligations if the Offering has not closed by February 15, 2004.
The undersigned understands that the Company and the
Underwriters will proceed with the Offering in reliance on this Lock-Up Letter
Agreement.
Whether or not the Offering actually occurs depends on a
number of factors, including market conditions. Any Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this Lock-Up Letter
Agreement and that, upon request, the undersigned will execute any additional
documents necessary in connection with the enforcement hereof. Any obligations
of the undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very truly yours,
By:
----------------------
Name:
Title:
Dated: _______________
EXHIBIT B
LOCK-UP LETTER AGREEMENT
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Citigroup Global Markets Inc.
Lazard Freres & Co. LLC
UBS Securities LLC
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned understands that you and certain other firms
propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT")
providing for the purchase by you and such other firms (the "UNDERWRITERS") of
shares (the "SHARES") of Common Stock, par value $.01 per share (the "COMMON
STOCK"), of Xxxxx Lemmerz International, Inc., a Delaware corporation (the
"COMPANY"), and that the Underwriters propose to reoffer the Shares to the
public (the "OFFERING").
In consideration of the execution of the Underwriting
Agreement by the Underwriters, and for other good and valuable consideration,
the undersigned hereby irrevocably agrees that, without the prior written
consent of Xxxxxx Brothers Inc., on behalf of the Underwriters, the undersigned
will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise
dispose of (or enter into any transaction or device that is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any shares of Common Stock (including, without limitation, shares of
Common Stock that may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission and shares of Common Stock that may be issued upon exercise of any
option or warrant) or securities convertible into or exchangeable for Common
Stock (other than the Shares) owned by the undersigned on the date of execution
of this Lock-Up Letter Agreement or on the date of the completion of the
Offering, or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such shares of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise, for a period of 90 days after
the date of the final Prospectus relating to the Offering. The foregoing
sentence shall not apply to the sale of the Shares in the Offering.
Notwithstanding the foregoing, the undersigned may also
transfer any shares of Common Stock or securities convertible into or
exchangeable for Common Stock held by the undersigned (i) in connection with the
sale or transfer of securities of the Company in connection with a sale of the
Company pursuant to an offer made on substantially the same terms to all of the
Company's stockholders, of which the Underwriters have been advised in writing,
or (ii) to any affiliate, member or partner of the undersigned, provided that
the transferee executes an agreement stating that the transferee is receiving
and holding such securities subject to the provisions of this LockUp Letter
Agreement and there shall be no further transfer of such securities except in
accordance with this Lock-Up Letter Agreement, and provided further that such
transfer shall not involve a disposition for value.
In furtherance of the foregoing, the Company and its Transfer
Agent are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Lock-Up Letter
Agreement.
It is understood that, if the Company notifies you that it
does not intend to proceed with the Offering, if the Underwriting Agreement does
not become effective, or if the Underwriting Agreement (other than the
provisions thereof which survive termination) shall terminate or be terminated
prior to payment for and delivery of the Shares, we will be released from our
obligations under this Lock-Up Letter Agreement. We will also be released from
our obligations if the Offering has not closed by February 15, 2004.
The undersigned understands that the Company and the
Underwriters will proceed with the Offering in reliance on this Lock-Up Letter
Agreement.
Whether or not the Offering actually occurs depends on a
number of factors, including market conditions. Any Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into this Lock-Up Letter
Agreement. Any obligations of the undersigned shall be binding upon the heirs,
personal representatives, successors and assigns of the undersigned.
Very truly yours,
By:
----------------------
Name:
Title:
Dated: _______________
EXHIBIT C
EXHIBIT D
