AK Steel Corporation UNDERWRITING AGREEMENT
EXECUTION COPY
$400,000,000
AK Steel Corporation
7.625% Senior Notes due 2020
April 27, 2010
Credit Suisse Securities (USA) LLC
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
Xxxxx Fargo Securities, LLC
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
UBS Securities LLC
Xxxxx Fargo Securities, LLC
As Representatives of the Several Underwriters,
c/o Credit Suisse Securities (USA) LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000-0000; and
Banc of America Securities LLC,
Xxx Xxxxxx Xxxx
XX0-000-00-00,
Xxx Xxxx, XX 00000
c/o Credit Suisse Securities (USA) LLC,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000-0000; and
Banc of America Securities LLC,
Xxx Xxxxxx Xxxx
XX0-000-00-00,
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. AK Steel Corporation, a Delaware corporation (“Company”) and AK Steel
Holding Corporation (the “Guarantor” or “Parent”) agree with the several Underwriters named in
Schedule A hereto (“Underwriters”) to issue and sell to the several Underwriters $400,000,000
principal amount of the Company’s 7.625% Senior Notes due 2020 (“Offered Securities”), to be issued
under an indenture as supplemented through the Closing Date (“Indenture”), between the Company, the
Guarantor and U.S. Bank, National Association, as Trustee. The Offered Securities will be
guaranteed on an unsecured senior basis by the Guarantor (such guarantee, the “Guarantee”).
2. Representations and Warranties of the Company and the Guarantor. The Company and the
Guarantor jointly and severally represent and warrant to, and agree with, the several Underwriters
that:
(a) Filing and Effectiveness of Registration Statement; Certain Defined Terms. AK
Steel Holding Corporation, a Delaware corporation (“Parent”), has filed with the Commission
a registration statement on Form S-3 (No. 333-166303), including a related prospectus or
prospectuses, covering the registration of the Offered Securities under the Act, which has
become effective. “Registration Statement” at any particular time means such registration
statement in the form then filed with the Commission, including any amendment thereto, any
document incorporated by reference therein and all 430B Information and all 430C
Information with respect to such registration statement, that in any case has not been
superseded or modified. “Registration Statement” without reference to a time means the
Registration Statement as of the Effective Time. For purposes of this definition, 430B
Information shall be considered to be included in the Registration Statement as of the time
specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information included in a prospectus then deemed to be a part
of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities Act of 1933, as amended.
“Applicable Time” means 4:30 pm (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning defined in Section 3 hereof.
“Commission” means the Securities and Exchange Commission.
“Effective Time” of the Registration Statement relating to the Offered Securities
means the time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities Exchange Act of 1934.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430B Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Laws” means, collectively, the Xxxxxxxx-Xxxxx Act of 2002
(“Xxxxxxxx-Xxxxx”), the Act, the Exchange Act, the Trust Indenture Act, the Rules and
Regulations, the auditing principles, rules, standards and practices applicable to auditors
of “issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company
Accounting Oversight Board and, as applicable, the rules of the New York Stock Exchange and
the NASDAQ Stock Market (“Exchange Rules”).
“Statutory Prospectus” with reference to any particular time means the prospectus
relating to the Offered Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information and all 430C Information
with respect to the Registration Statement. For purposes of the foregoing definition,
430B Information shall be considered to be included in the Statutory Prospectus only as of
the actual time that form of prospectus (including a prospectus supplement) is filed with
the Commission pursuant to Rule 424(b) and not retroactively.
“Subsidiary” means each direct and indirect subsidiary of Parent.
“Trust Indenture Act” means the Trust Indenture Act of 1939.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Act.
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(b) Compliance with Securities Act Requirements. (i) (A) At the time the
Registration Statement initially became effective, (B) at the time of each amendment
thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by
post-effective amendment, incorporated report or form of prospectus), (C) at the Effective
Time relating to the Offered Securities and (D) on the Closing Date, the Registration
Statement conformed and will conform in all material respects to the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations and did not and will not include
any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and (ii) (A) on
its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on
the Closing Date, the Final Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, and will not include any untrue
statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The preceding sentence
does not apply to statements in or omissions from any such document based upon written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
is that described as such in Section 8(b) hereof.
(c) Automatic Shelf Registration Statement. (i) Well-Known Seasoned Issuer Status.
(A) At the time of initial filing of the Registration Statement, (B) at the time of the
most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the
Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (C) at the
time the Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the
exemption of Rule 163, Parent was a “well known seasoned issuer” as defined in Rule 405,
including not having been an “ineligible issuer” as defined in Rule 405.
(ii) Effectiveness of Automatic Shelf Registration Statement. The
Registration Statement is an “automatic shelf registration statement,” as defined
in Rule 405, that initially became effective within three years of the date of this
Agreement.
(iii) Eligibility to Use Automatic Shelf Registration Form. Parent has not
received from the Commission any notice pursuant to Rule 401(g)(2) objecting to use
of the automatic shelf registration statement form. If at any time when Offered
Securities remain unsold by the Underwriters Parent receives from the Commission a
notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form and such Underwriters are required to
deliver a prospectus for the Offered Securities, Parent will (i) promptly notify
the Representatives, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Offered Securities, in
a form satisfactory to the Representatives, (iii) use its reasonable best efforts
to cause such registration statement or post-effective amendment to be declared
effective as soon as practicable, and (iv) promptly notify the Representatives of
such effectiveness. Parent will take all other action necessary or appropriate to
permit the public offering and sale of the Offered Securities to continue as
contemplated in the registration statement that was the subject of the Rule
401(g)(2) notice or for which Parent has otherwise become ineligible. References
herein to the Registration Statement shall include such new registration statement
or post-effective amendment, as the case may be.
(iv) Filing Fees. Parent has paid or shall pay the required Commission filing
fees relating to the Offered Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
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(d) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
preliminary prospectus supplement, dated April 26, 2010, including the base prospectus,
dated April 26, 2010, (which is the most recent Statutory Prospectus distributed to
investors generally), and the other information, if any, stated in Schedule B to this
Agreement to be included in the General Disclosure Package, all considered together
(collectively, the “General Disclosure Package”), nor (ii) any individual Limited Use
Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from any Statutory Prospectus or any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(b) hereof.
(e) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or as a result of which such
Issuer Free Writing Prospectus, if republished immediately following such event or
development, would include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (i) the Company has promptly
notified or will promptly notify the Representatives and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
(f) Good standing of the Company and Parent. Each of the Company and Parent has been
duly incorporated and is validly existing as a corporation and in good standing under the
laws of the State of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the General Disclosure Package; and
each of the Company and Parent is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, reasonably be expected to result in
a material adverse effect on the condition (financial or otherwise), results of operations,
business, properties or prospects of the Company, Parent and the Subsidiaries taken as a
whole (“Material Adverse Effect”).
(g) Subsidiaries. Each Subsidiary has been duly incorporated and is existing and in
good standing under the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its business as described
in the General Disclosure Package; and each Subsidiary is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification, except where
the failure to be so qualified would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; all of the issued and outstanding capital
stock of each Subsidiary has been duly authorized and validly issued and is fully paid and
nonassessable; and except as disclosed in the General Disclosure Package and the Final
Prospectus, all of the capital stock of each Subsidiary is owned by Parent, directly or
indirectly, free from liens, encumbrances and defects.
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(h) Execution and Delivery of Indenture; Offered Securities; Guarantee. The Indenture
has been duly authorized by the Company and the Guarantor and has been duly qualified under
the Trust Indenture Act; when duly executed and delivered in accordance with its terms by
each of the parties thereto, the Indenture will constitute a valid and legally binding
obligation of the Company and the Guarantor, enforceable against each of them in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles (collectively, the “Enforceability Exceptions”);
the Offered Securities have been duly authorized by the Company and, when the Offered
Securities are delivered and paid for pursuant to this Agreement on the Closing Date, the
Indenture having been duly executed and delivered, such Offered Securities will have been
duly executed, authenticated, issued and delivered, will conform in all material respects
to the information in the General Disclosure Package and to the description of such Offered
Securities contained in the Final Prospectus and such Offered Securities will constitute
valid and legally binding obligations of the Company, enforceable in accordance with their
terms, subject to the Enforceability Exceptions; and the Guarantee to be endorsed on the
Offered Securities by the Guarantor has been duly authorized by such Guarantor and, when
the Offered Securities are executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein the Guarantee of the Guarantor endorsed thereon
will have been duly executed and delivered by such Guarantor, will conform in all material
respects to the information in the General Disclosure Package and to the description of
such Guarantee contained in the Final Prospectus and will constitute a valid and legally
binding obligation of the Guarantor, enforceable in accordance with its terms, subject to
the Enforceability Exceptions.
(i) No Finder’s Fee. Except as disclosed in the General Disclosure Package and the
Final Prospectus, there are no contracts, agreements or understandings between the Company
or the Guarantor and any person that would give rise to a valid claim against the Company,
the Guarantor or any Underwriter for a brokerage commission, finder’s fee or other like
payment in connection with this offering.
(j) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required for the consummation of the transactions contemplated by this
Agreement or the Indenture in connection with the offering, issuance and sale of the
Offered Securities by the Company or the sale of the Guarantee by the Guarantor, except (i)
such as have been obtained, or made and such as may be required under state securities laws
and (ii) except for such consents approvals, authorizations, orders, filings or
registrations that would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(k) Title to Property. Except as disclosed in the General Disclosure Package and the
Final Prospectus, the Company, Parent and the Subsidiaries have good and marketable title
to all real properties and all other properties and assets owned by them, in each case free
from liens, charges, encumbrances and defects except where the failure to have such title
or the existence of such lien, charge, encumbrance or defect would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect, and except as
disclosed in the General Disclosure Package and the Final Prospectus, the Company, Parent
and the Subsidiaries hold any leased real or personal property under valid and enforceable
leases with no terms or provisions that would materially interfere with the use made or to
be made thereof by them.
(l) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of the Indenture and this Agreement, the issuance and sale of the
Offered Securities and the Guarantees and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and provisions of, or
constitute a default or a Debt Repayment Triggering Event (as defined below) under, or
result in the imposition of any lien, charge or encumbrance upon any property or assets of
the Company, Parent or any of the
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Subsidiaries pursuant to (i) the charter or by-laws of
the Company, Parent or any of the Subsidiaries, (ii) any statute, rule, regulation or order
of any governmental agency or body or any court, domestic or foreign, having jurisdiction
over the Company, Parent or any of the Subsidiaries or any of their properties, or (iii)
any agreement or instrument to which the Company, Parent or any of the Subsidiaries is a
party or by which the Company, Parent or any of the Subsidiaries is bound or to which any
of the properties of the Company, Parent or any of the Subsidiaries is subject, except, in
the case of (iii) above, for such conflicts, breaches, violations, liens, charges or
encumbrances that would not, individually or in the aggregate, have a Material Adverse
Effect; a “Debt Repayment Triggering Event” means any event or condition that gives, or
with the giving of notice or lapse of time would give, the holder of any note, debenture,
or other evidence of indebtedness (or any person acting on such holder’s behalf) the right
to require the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company, Parent or any of the Subsidiaries.
(m) Absence of Existing Defaults and Conflicts. Neither the Company, Parent nor any
of the Subsidiaries is in violation of its respective charter or by-laws or in default (or
with the giving of notice or lapse of time would be in default) under any existing
obligation, agreement, covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which any of them is a party or by
which any of them is bound or to which any of the properties of any of them is subject,
except such defaults that would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(n) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor.
(o) Possession of Licenses and Permits. The Company, Parent and the Subsidiaries
possess, and are in compliance with the terms of, all adequate certificates,
authorizations, franchises, licenses and permits (“Licenses”) necessary or material to the
conduct of the business now conducted or proposed in the General Disclosure Package to be
conducted by them and have not received any notice of proceedings relating to the
revocation or modification of any Licenses that, if determined adversely to the Company,
Parent or any of the Subsidiaries, would individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(p) Absence of Labor Dispute. Except as disclosed in the General Disclosure Package
and Final Prospectus, no labor dispute with the employees of the Company, Parent or any of
the Subsidiaries exists or, to the knowledge of the Company or any Guarantor, is threatened
that would, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
(q) Possession of Intellectual Property. The Company, Parent and the Subsidiaries
own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “intellectual property rights”) necessary to conduct
the business now operated by them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the Company, Parent or any of
the Subsidiaries, would individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(r) Environmental Laws. Except as disclosed in the General Disclosure Package and the
Final Prospectus, (a)(i) none the Company, Parent or any of the Subsidiaries is in
violation of, or has any liability under, any federal, state, local or non-U.S. statute,
law, rule, regulation, ordinance, code, other requirement or rule of law (including common
law), or decision or order of any domestic or foreign governmental agency, governmental
body or court, relating to pollution, to the use, handling, transportation, treatment,
storage, discharge, disposal or release of Hazardous
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Substances, to the protection or
restoration of the environment or natural resources (including biota), to health and safety
as such relates to exposure to Hazardous Substances, and to natural resource damages
(collectively, “Environmental Laws”), (ii) none of the Company, Parent or any of the
Subsidiaries owns, occupies, operates or uses any real property contaminated with Hazardous
Substances, (iii) none of the Company, Parent or any of the Subsidiaries is conducting or
funding any investigation, remediation, remedial action or monitoring of actual or
suspected Hazardous Substances in the environment, (iv) none of the Company, Parent or any
of the Subsidiaries is liable or, to its knowledge, allegedly liable for any release or
threatened release of Hazardous Substances, including at any off-site treatment, storage or
disposal site, (v) none of the Company, Parent or any of the Subsidiaries is subject to any
claim by any governmental agency or governmental body or person relating to Environmental
Laws or Hazardous Substances, and (vi) the Company, Parent and the Subsidiaries have
received and are in compliance with all, and have no liability under any, permits,
licenses, authorizations, identification numbers or other approvals required under
applicable Environmental Laws to conduct their respective businesses, except in each case
covered by clauses (i) – (vi) such as would not individually or in the aggregate reasonably
be expected to have a Material Adverse Effect; (b) to the knowledge of the Company or the
Guarantor there are no facts or circumstances that would reasonably be expected to result
in a violation of, liability under, or claim pursuant to any Environmental Law that would
reasonably be expected to have a Material Adverse Effect; and (c) to the knowledge of the
Company or the Guarantor there are no requirements proposed for adoption or implementation
under any Environmental Law that would reasonably be expected to have a Material Adverse
Effect. For purposes of this subsection “Hazardous Substances” means (A) petroleum and
petroleum products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and mold, and (B) any other
chemical, material or substance defined or regulated as toxic or hazardous or as a
pollutant, contaminant or waste under Environmental Laws.
(s) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the heading “Description of Notes” and “Description of Certain
Indebtedness,” insofar as such statements summarize legal matters, agreements, documents or
proceedings discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings and present the information required to be shown.
(t) Accurate Tax Disclosure. To the extent that the statements set forth in the
General Disclosure Package and the Final Prospectus under the caption “U.S. Federal Income
Tax Considerations” purport to describe certain provisions of the United States federal tax
laws referred to therein, such summaries fairly describe, in all material respects, such
provisions.
(u) Absence of Manipulation. Neither the Company nor any Guarantor has taken,
directly or indirectly, any action that is designed to or that has constituted or that
would 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 Offered
Securities.
(v) Statistical and Market-Related Data. Any third-party statistical and
market-related data included or incorporated by reference in the General Disclosure Package
or in the Final Prospectus are based on or derived from sources that the Company and the
Guarantor believe to be reliable and accurate.
(w) Internal Controls and Compliance with the Xxxxxxxx-Xxxxx Act. Except as set forth
in the General Disclosure Package and the Final Prospectus, Parent, the Company and the
Subsidiaries and Parent’s Board of Directors (the “Board”) are in compliance with
Xxxxxxxx-Xxxxx and all applicable Exchange Rules in all material respects. Parent maintains
a system of “internal controls over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) (collectively, “Internal Controls”) that comply with the Exchange Act and
are sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s
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general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with U.S.
General Accepted Accounting Principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. The Internal Controls are, or upon consummation of the offering of the
Offered Securities will be, overseen by the Audit Committee (the “Audit Committee”) of the
Board in accordance with Exchange Rules. Parent has not publicly disclosed or reported to
the Audit Committee or the Board, and within the next 90 days Parent does not reasonably
expect to publicly disclose or report to the Audit Committee or the Board, a significant
deficiency, material weakness, change in Internal Controls or fraud involving management or
other employees who have a significant role in Internal Controls (each, an “Internal
Control Event”), any violation of, or failure to comply with, the Securities Laws, or any
matter which, if determined adversely, would reasonably be expected to have a Material
Adverse Effect.
(x) Disclosure Controls. Except as set forth in the General Disclosure Package and
the Final Prospectus, Parent, the Company and the Subsidiaries maintain an effective system
of “disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act)
that is designed to ensure that information required to be disclosed by Parent in reports
that it files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated and
communicated to Parent’s management as appropriate to allow timely decisions regarding
required disclosure. Parent, the Company and the Subsidiaries have carried out evaluations
of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15
of the Exchange Act.
(y) Litigation. Except as disclosed in the General Disclosure Package and the Final
Prospectus, there are no pending actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body, domestic or foreign) against or
affecting the Company, Parent any of the Subsidiaries or any of their respective properties
that, if determined adversely to the Company, Parent or any of the Subsidiaries, would
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,
or would materially and adversely affect the ability of the Company or Parent to perform
their respective obligations under the Indenture or this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities and the sale of the
Guarantees; and to the Company’s or Parent’s knowledge, no such actions, suits or
proceedings (including any inquiries or investigations by any court or governmental agency
or body, domestic or foreign) are threatened or contemplated.
(z) Financial Statements. The financial statements included in the Registration
Statement, the General Disclosure Package and the Final Prospectus present fairly the
financial position of Parent and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and, except as otherwise
disclosed in the General Disclosure Package and the Final Prospectus, such financial
statements have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis.
(aa) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package and the Final Prospectus, since the end of the period covered by the
latest audited financial statements included in the General Disclosure Package and the
Final Prospectus (i) there has been no change, in the condition (financial or otherwise),
results of operations, business, properties or prospects of the Company, Parent and the
Subsidiaries, taken as a whole that is material and adverse, (ii) except as disclosed in or
contemplated by the General Disclosure Package and the Final Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by Parent on any class of its
capital stock and (iii) except as disclosed in or
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contemplated by the General Disclosure
Package, there has been no material adverse change in the capital stock, short-term
indebtedness, long-term indebtedness, net current assets or net assets of Parent.
(bb) Investment Company Act. Neither the Company nor the Guarantor is and, after
giving effect to the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the General Disclosure Package and the Final Prospectus,
will not be an “investment company” as defined in the Investment Company Act of 1940 (the
“Investment Company Act”).
(cc) Ratings. No “nationally recognized statistical rating organization” as such term
is defined for purposes of Rule 436(g)(2) under the Act (i) has imposed (or has informed
the Company that it is considering imposing) any condition (financial or otherwise) on the
Company’s retaining any rating assigned to the Company or any securities of the Company or
Parent or (ii) has indicated to the Company or Parent that it is considering any of the
actions described in Section 7(c)(ii) hereof.
(dd) Foreign Corrupt Practices Act. None of the Company, Parent or, to the best of
the Company’s and Parent’s knowledge, any of the Subsidiaries or their respective
directors, officers, agents, employees or affiliates is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the FCPA,
including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate
for foreign political office, in contravention of the FCPA and the Company, Parent and, to
the best of the Company’s and Parent’s knowledge, the Subsidiaries and affiliates have
conducted their businesses in compliance with the FCPA and have devised or instituted
policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(ee) Compliance with Money Laundering Laws. To the best of the Company’s and
Parent’s knowledge, the operations of the Company, Parent and the Subsidiaries are and have
been conducted at all times in compliance in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any governmental agency.
(ff) Compliance with OFAC. None of the Company, Parent or any of the Subsidiaries
nor, to the knowledge of the Company or any Guarantor, any director, officer, agent,
employee or affiliate of the Company, Parent or any of the Subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions administered
by OFAC.
(gg) Taxes. The Company, Parent and the Subsidiaries have filed all federal, state,
local and non-U.S. 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 reasonably be
expected to have a Material Adverse Effect); and, except as set forth in the General
Disclosure Package and the Final Prospectus, the Company, Parent and the Subsidiaries have
paid all taxes (including any assessments, fines or penalties) required to be paid by them,
except for any such taxes,
9
assessments, fines or penalties currently being contested in
good faith or as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(hh) Insurance. The Company, Parent and the Subsidiaries are insured by insurers
with appropriately rated claims paying abilities against such losses and risks and in such
amounts as are prudent and customary for the businesses in which they are engaged; all
policies of insurance insuring the Company, Parent or any of the Subsidiaries or their
respective businesses, assets, employees, officers and directors are in full force and
effect; the Company, Parent and the Subsidiaries are in compliance with the terms of such
policies and instruments in all material respects; and there are no claims by the Company,
Parent or any of the Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of rights clause;
none of the Company, Parent or any such Subsidiary has been refused any insurance coverage
sought or applied for; and none of the Company, Parent or any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not reasonably be expected to have
a Material Adverse Effect, except as set forth in or contemplated in the General Disclosure
Package and the Final Prospectus.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 98.00% of the principal amount of
Offered Securities set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver the Offered Securities to or as instructed by the Representatives for
the accounts of the several Underwriters in a form reasonably acceptable to the Representatives
against payment of the purchase price by the Underwriters in Federal (same day) funds by wire
transfer to an account at a bank acceptable to the Representatives drawn to the order of the
Company at the office of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
at 9:00 A.M., New York time, on May 11, 2009, or at such other time not later than seven full
business days thereafter as the Representatives and the Company determine, such time being herein
referred to as the “Closing Date”. For purposes of Rule 15c6-1 under the Exchange Act, the Closing
Date (if later than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold pursuant to the
offering. The Offered Securities so to be delivered or evidence of their issuance will be made
available for checking at the above office of Xxxxx Xxxx & Xxxxxxxx LLP at least 24 hours prior to
the Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
5. Certain Agreements of the Company and the Guarantor. The Company and the Guarantor jointly
and severally agree with the several Underwriters that:
(a) Filing of Prospectuses. The Company has filed or will file each Statutory
Prospectus (including the Final Prospectus) pursuant to and in accordance with
Rule 424(b)(2) of the Act (or, if applicable and consented to by the Representatives,
subparagraph (5)) not later than the second business day following the earlier of the date
it is first used or the execution and delivery of this Agreement. The Company has complied
and will comply with Rule 433 of the Act.
(b) Filing of Amendments; Response to Commission Requests. The Company will promptly
advise the Representatives of any proposal to amend or supplement the Registration
Statement or any Statutory Prospectus at any time and will offer the Representatives a
reasonable opportunity to
10
comment on any such amendment or supplement; and the Company will
also advise the Representatives promptly of (i) the filing of any such amendment or
supplement, (ii) any request by the Commission or its staff for any amendment to the
Registration Statement, for any supplement to any Statutory Prospectus or for any
additional information, (iii) the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or the threatening of any proceeding
for that purpose, and (iv) the receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities or the Guarantees in any
jurisdiction or the institution or threatening of any proceedings for such purpose. The
Company will use its reasonable best efforts to prevent the issuance of any such stop order
or the suspension of any such qualification and, if issued, to obtain as soon as possible
the withdrawal thereof.
(c) Continued Compliance with Securities Laws. (i) If, at any time when a prospectus
relating to the Offered Securities or the Guarantee is (or but for the exemption in
Rule 172 would be) required to be delivered under the Act by any Underwriter or dealer, any
event occurs as a result of which the Final Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act, the Company will
promptly notify the Representatives of such event and will promptly prepare and file with
the Commission and furnish, at its own expense, to the Underwriters and the dealers and any
other dealers upon request of the Representatives, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such compliance; and
(ii) if at any time prior to the filing of the Final Prospectus, any event occurs as a
result of which the General Disclosure Package as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, the Company will promptly notify the Representatives of such event
and will promptly prepare and file with the Commission and furnish, at its own expense, to
the Underwriters and the dealers and any other dealers upon request of the Representatives,
a supplement which will correct such statement or omission or an amendment which will
effect such compliance. Neither the Representatives’ consent to, nor the Underwriters’
delivery of, any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7 hereof.
(d) Rule 158. As soon as practicable, but not later than 16 months, after the date of
this Agreement, Parent will make generally available to its securityholders an earnings
statement covering a period of at least 12 months beginning after the date of this
Agreement and satisfying the provisions of Section 11(a) of the Act and Rule 158.
(e) Furnishing of Prospectuses. The Company will furnish to the Representatives
copies of the Registration Statement, including all exhibits, any Statutory Prospectus, the
Final Prospectus and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Representatives reasonably request. The Company
will pay the expenses of printing and distributing to the Underwriters all such documents.
(f) Blue Sky Compliance. The Company will qualify the Offered Securities for offer
and sale under the laws of such U.S. jurisdictions as the Representatives shall reasonably
request and will continue such qualifications in effect so long as required for
distribution of the Securities; provided that the Company shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file any general
consent to service of process in any such jurisdiction or (iii) subject itself to taxation
in any such jurisdiction if it is not otherwise so subject.
11
(g) Reporting Requirements. Parent, during the period when the Final Prospectus is
required to be delivered under the Act, will file all documents required to be filed with
the Commission pursuant to the Exchange Act within the time periods required by the
Exchange Act.
(h) Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including but not limited to (i) any
filing fees and other expenses (including fees and disbursements of counsel to the
Underwriters) incurred in connection with qualification of the Offered Securities and the
Guarantee for sale under the laws of such jurisdictions as the Representatives designate
and the preparation and printing of memoranda relating thereto, (ii) any fees charged by
investment rating agencies for the rating of the Offered Securities, costs and expenses
relating to investor presentations or any “road show” in connection with the offering and
sale of the Offered Securities including, without limitation, (iii) any travel expenses of
the Company’s or Parent’s officers and employees and any other expenses of the Company or
any Guarantor including the chartering of airplanes, fees and expenses in connection with
the registration of the Offered Securities under the Exchange Act, and (iv) expenses
incurred in distributing preliminary prospectuses and the Final Prospectus (including any
amendments and supplements thereto) to the Underwriters and for expenses incurred for
preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or
prospective investors. It is understood, however, that, except as provided in subclause
(i) of this clause (h), and Sections 8 and 10 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer taxes on resale
of any of the Securities and the Guarantee by them, and any advertising expenses connected
with any offers they may make.
(i) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and the Final Prospectus and, except as disclosed in the General
Disclosure Package and the Final Prospectus, the Company does not intend to use any of the
proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt
owed to any affiliate of any Underwriter.
(j) Absence of Manipulation. Neither the Company nor the Guarantor will take,
directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Offered Securities.
(k) Restriction on Sale of Securities. Neither the Company nor any Guarantor will
offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or
file with the Commission a registration statement under the Act relating to United States
dollar-denominated debt securities issued or guaranteed by the Company or any Guarantor and
having a maturity of more than one year from the date of issue, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing, without the prior
written consent of the Credit Suisse Securities (USA) LLC and Banc of America Securities
LLC for a period beginning on the date hereof and ending 30 days after the Closing Date.
6. Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company and
the Guarantor jointly and severally represent and agree that, unless the Company obtains
the prior consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representatives, it has not made
and will not make any offer relating to the Offered Securities that would constitute an
Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus consented to by the Company and the Representatives is
hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company and the
Guarantor jointly and severally represent that they have treated and agree that they will
treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as
12
defined in Rule 433, and have complied and will comply with the requirements of Rules 164
and 433 applicable to any Permitted Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping.
(b) Term Sheets. The Company will prepare a final term sheet relating to the Offered
Securities, containing only information that describes the final terms of the Offered
Securities and otherwise in a form consented to by the Representatives, and will file such
final term sheet within the period required by Rule 433(d)(5)(ii) following the date such
final terms have been established for all classes of the offering of the Offered
Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted
Free Writing Prospectus for purposes of this Agreement. The Company also consents to the
use by any Underwriter of a free writing prospectus that contains only (i)(x) information
describing the preliminary terms of the Offered Securities or their offering or (y)
information that describes the final terms of the Offered Securities or their offering and
that is included in the final term sheet of the Company contemplated in the first sentence
of this subsection or (ii) other information that is not “issuer information,” as defined
in Rule 433, it being understood that any such free writing prospectus referred to in
clause (i) or (ii) above shall not be an Issuer Free Writing Prospectus for purposes of
this Agreement.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the Offered Securities on the Closing Date will be subject to
the accuracy of the representations and warranties of the Company and the Guarantor herein (as
though made on the Closing Date), to the accuracy of the statements of the Company’s and the
Guarantor’s officers made pursuant to the provisions hereof, to the performance by the Company and
the Guarantor of their respective obligations hereunder and to the following additional conditions
precedent:
(a) Accountants’ Comfort Letter. The Representatives shall have received letters,
dated, respectively, the date hereof and the Closing Date, of Deloitte & Touche LLP
confirming that they are a registered public accounting firm and independent public
accountants within the meaning of the Securities Laws and substantially in the form agreed
to with the Representatives (except that, in the letter dated the Closing Date, the
specified date referred to in the letter shall be a date no more than three days prior to
the Closing Date).
(b) Filing of Prospectus. The Final Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or of any part thereof
shall have been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of the Company, any Guarantor or any Underwriter, shall be contemplated by
the Commission.
(c) No Material Adverse Change. Subsequent to the Applicable Time, there shall not
have occurred (i) any change in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company, Parent and the Subsidiaries
taken as a whole which, in the judgment of the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with the offering, sale or
delivery of the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company or the Guarantor by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g)), or any public announcement that any
such organization has under surveillance or review its rating of any debt securities of the
Company or the Guarantor (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such rating); (iii)
any change in U.S. or international financial, political or economic conditions or currency
exchange rates or exchange controls the effect of which is such as to make it, in the
judgment of the Representatives, impractical to proceed with the offering, sale or delivery
of or to enforce contracts for the sale of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or any
setting of minimum or maximum
13
prices for trading on such exchange; (v) or any suspension of
trading of any securities of the Company or any Guarantor on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New
York authorities; (vii) any major disruption of settlements of securities, payment, or
clearance services in the United States or any other country where such securities are
listed or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by the U.S. Congress or any other
national or international calamity or emergency if, in the judgment of the Representatives,
the effect of any such attack, outbreak, escalation, act, declaration, calamity or
emergency is such as to make it impractical or inadvisable to proceed with the offering,
sale or delivery of the Offered Securities or to enforce contracts for the sale of the
Offered Securities.
(d) Opinions of Counsel for Company and the Guarantor. The Representatives shall
have received an opinion, dated the Closing Date, of Weil, Gotshal & Xxxxxx LLP, counsel
for the Company and the Guarantor, substantially in the form attached hereto as Exhibit A.
(e) Opinion of Counsel for Underwriters. The Representatives shall have received
from Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Representatives may require,
and the Company shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) Officers’ Certificate. The Representatives shall have received a certificate,
dated the Closing Date, of an executive officer of the Company and the Guarantor and a
principal financial or accounting officer of the Company and the Guarantor in which such
officers shall state that: the representations and warranties of the Company and the
Guarantor in this Agreement are true and correct; the Company and the Guarantor have
complied with all agreements and satisfied all conditions on their parts to be performed or
satisfied hereunder at or prior to the Closing Date; no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge and after reasonable
investigation, are contemplated by the Commission; and, subsequent to the dates of the most
recent financial statements in the General Disclosure Package and the Final Prospectus,
there has been no material adverse change in the condition (financial or otherwise),
results of operations, business, properties or prospects of the Company, Parent and the
Subsidiaries taken as a whole except as set forth in the General Disclosure Package and the
Final Prospectus or as described in such certificate.
The Company and the Guarantor will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably request. The
Representatives may in their discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder.
8. Indemnification and Contribution. (a) Indemnification of Underwriters. The Company and
the Guarantor will jointly and severally indemnify and hold harmless each Underwriter, its
partners, members, directors, officers, employees, agents, affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act (each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities,
joint or several, to which such Indemnified Party may become subject, under the Act, the Exchange
Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in any part of the
Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus
or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Indemnified Party for any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or defending
14
against
any loss, claim, damage, liability, action, litigation, investigation or proceeding whatsoever
(whether or not such Indemnified Party is a party thereto), whether threatened or commenced, and in
connection with the enforcement of this provision with respect to any of the above as such expenses
are incurred; provided, however, that the Company and the Guarantor will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information
described as such in subsection (b) below.
(b) Indemnification of Company and the Guarantor. Each Underwriter will severally and not
jointly indemnify and hold harmless the Company, the Guarantor, each of their respective directors,
each of their respective officers who signs a Registration Statement and each person, if any, who
controls the Company or any Guarantor within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (each, an “Underwriter Indemnified Party”), against any losses, claims, damages or
liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the
Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact contained in any part of
the Registration Statement at any time, any Statutory Prospectus as of any time, the Final
Prospectus, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission
or the alleged omission of a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by such Underwriter Indemnified Party in connection with investigating
or defending against any such loss, claim, damage, liability, action, litigation, investigation or
proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto),
whether threatened or commenced, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists of the following information
in the Final Prospectus furnished on behalf of each Underwriter: the concession and reallowance
figures appearing in the third paragraph under the caption “Underwriting”, the information
contained in the fifth paragraph under the caption “Underwriting” relating to market making
activities and the information contained in the ninth paragraph under the caption “Underwriting.”
(c) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b)
above, notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have to an indemnified
party otherwise than under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
15
settlement (i) includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified
party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received by the Company and
the Guarantor on the one hand and the Underwriters on the other from the offering of the Offered
Securities 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 Guarantor on the one hand and
the Underwriters on the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Guarantor bear to the total
underwriting discounts and commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantor or the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint. The Company, each Guarantor and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 8(d).
9. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on the Closing Date and the aggregate principal amount of
Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total principal amount of Offered Securities that the Underwriters are
obligated to purchase on the Closing Date, the Representatives may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase
on the Closing Date. If any Underwriter or Underwriters so default and the aggregate principal
amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities that the Underwriters are obligated to purchase on
the Closing Date and arrangements satisfactory to the Representatives and the Company for the
purchase of such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company, except as provided in Section 10. As used in this Agreement,
16
the term “Underwriter” includes any person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Guarantor or any
of their respective officers and of the several Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the Company, the Guarantor or any of
their respective representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by
the Underwriters is not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 9 hereof, the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities, and the respective obligations of the
Company, the Guarantor and the Underwriters pursuant to Section 8 hereof shall remain in effect.
For the avoidance of doubt, if the Agreement is terminated pursuant to Section 9 hereof, the
respective obligations of the Company, the Guarantor and the Underwriters pursuant to Section 8
hereof shall remain in effect. In addition, if any Offered Securities have been purchased
hereunder, the representations and warranties in Section 2 and all obligations under Section 5
shall also remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives, c/o
Credit Suisse Securities (USA) LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention:
LCD-IBD and c/o Banc of America Securities LLC, Xxx Xxxxxx Xxxx, XX0-000-00-00, Xxx Xxxx, XX 00000,
Attention: High Grade Transaction Management/Legal, or, if sent to the Company or any Guarantor,
will be mailed, delivered or telegraphed and confirmed to it at AK Steel Corporation, 0000 Xxxxxx
Xxxxxx Xxxxx, Xxxx Xxxxxxx, XX 00000, Attention: General Counsel; provided, however, that any
notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and
confirmed to such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 8, and no other person will have any right or obligation hereunder.
13. Representation of Underwriters. The Representatives will act for the several
Underwriters in connection with this financing, and any action under this Agreement taken by the
Representatives jointly or by Credit Suisse Securities (USA) LLC will be binding upon all the
Underwriters.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
15. Absence of Fiduciary Relationship. The Company and Parent acknowledge and agree that:
(a) No Other Relationship. The Underwriters have been retained solely to act as underwriters
in connection with the sale of Offered Securities and that no fiduciary, advisory or agency
relationship between the Company and the Guarantor, on the one hand, and the Underwriters, on the
other hand, has been created in respect of any of the transactions contemplated by this Agreement
or the Final Prospectus, irrespective of whether the Underwriters have advised or is advising the
Company or the Guarantor on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in this
Agreement was established by the Company following discussions and arms-length negotiations with
the Underwriters, and the Company and the Guarantor are capable of evaluating and understanding and
understand and accept the terms, risks and conditions of the transactions contemplated by this
Agreement;
17
(c) Absence of Obligation to Disclose. The Company and the Guarantor have been advised that
the Underwriters and their affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company and the Guarantor and that the Underwriters
have no obligation to disclose such interests and transactions to the Company or the Guarantor by
virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company and the Guarantor waive, to the fullest extent permitted by law, any
claims they may have against the Underwriters for breach of fiduciary duty or alleged breach of
fiduciary duty and agree that the Underwriters shall have no liability (whether direct or indirect)
to the Company or the Guarantor in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company or the Guarantor,
including stockholders, employees or creditors of the Company or the Guarantor.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company and the Guarantor hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby. The Company
and the Guarantor irrevocably and unconditionally waives any objection to the laying of venue of
any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York
and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that
any such suit or proceeding in any such court has been brought in an inconvenient forum.
18
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company, each Guarantor and the several Underwriters in accordance
with its terms.
Very truly yours, | ||||||||||
AK Steel Corporation | ||||||||||
By Name: |
/s/ Xxxxxx X. Xxxxxxx, Xx.
|
|||||||||
Title: | VP, Finance and CFO | |||||||||
AK Steel Holding Corporation | ||||||||||
as Guarantor | ||||||||||
By Name: |
/s/ Xxxxxx X. Xxxxxxx, Xx.
|
|||||||||
Title: | VP, Finance and CFO |
19
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
Credit Suisse Securities (USA) LLC | |||||||||||
By: | /s/ Xxxxx Matt | ||||||||||
Title: Managing Director | |||||||||||
Banc of America Securities LLC | |||||||||||
By: | /s/ Xxxxxxx Xxxxxx | ||||||||||
Title: Director | |||||||||||
X.X. Xxxxxx Securities Inc. | |||||||||||
By: | /s/ Xxxxx X. Xxxxx | ||||||||||
Title: Executive Director | |||||||||||
Xxxxxx Xxxxxxx & Co. Incorporated | |||||||||||
By: | /s/ Xxxxx Xxxxxxx | ||||||||||
Title: Executive Director | |||||||||||
UBS Securities LLC | |||||||||||
By: | /s/ Xxxxxxxxx Xxxxx-Xxxxx | /s/ Xxxxx X.
Xxxxx |
|||||||||
Xxxxx X. Xxxxx | |||||||||||
Title: Managing Director | Director | ||||||||||
Xxxxx Fargo Securities, LLC | |||||||||||
By: | /s/ Xxxxxxx X. Xxxxx | ||||||||||
Title: Managing Director |
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
20
SCHEDULE A
Principal | ||||
Amount of | ||||
Underwriter | % Senior Notes due 2020 | |||
Credit Suisse Securities (USA) LLC |
$ | 180,000,000 | ||
Banc of America Securities LLC |
$ | 120,000,000 | ||
X.X. Xxxxxx Securities Inc. |
$ | 20,000,000 | ||
Xxxxxx Xxxxxxx & Co. Incorporated |
$ | 20,000,000 | ||
UBS Securities LLC |
$ | 20,000,000 | ||
Xxxxx Fargo Securities, LLC |
$ | 20,000,000 | ||
Fifth Third Securities, Inc |
$ | 5,000,000 | ||
PNC Capital Markets LLC |
$ | 5,000,000 | ||
Citigroup Global Markets Inc. |
$ | 5,000,000 | ||
Deutsche Bank Securities Inc. |
$ | 5,000,000 | ||
Total |
$ | 400,0000,000 | ||
SCHEDULE B
1. | General Use Free Writing Prospectuses (included in the General Disclosure Package) |
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
1. Press Release, dated April 26, 2010, a copy of which is attached hereto.
2. Final term sheet, dated April 27, 2010, a copy of which is attached hereto.
2. | Other Information Included in the General Disclosure Package |
The following information is also included in the General Disclosure Package:
None
Filed pursuant to Rule 433
April 26, 2010
April 26, 2010
Relating to
Preliminary Prospectus Supplement dated April 26, 2010 to
Prospectus dated April 26, 2010
Registration Statement No. 333-166303
Preliminary Prospectus Supplement dated April 26, 2010 to
Prospectus dated April 26, 2010
Registration Statement No. 333-166303
News Release |
Contacts: Media — Xxxx X. XxXxx, Vice President, Government & Public Relations (000) 000-0000
Investors — Xxxxxx X. Xxxxxxx, Xx., Vice President, Finance & CFO (000) 000-0000
Investors — Xxxxxx X. Xxxxxxx, Xx., Vice President, Finance & CFO (000) 000-0000
AK Steel Announces
Offering of $400 Million of Senior Notes and Cash Tender Offer and Consent
Solicitation for its 7 3/4% Senior Notes due 0000
Offering of $400 Million of Senior Notes and Cash Tender Offer and Consent
Solicitation for its 7 3/4% Senior Notes due 0000
XXXX XXXXXXX, XX, April 26, 2010 — AK Steel Holding Corporation (NYSE: AKS) (“AK Holding”)
announced today that its subsidiary, AK Steel Corporation (“AK Steel”), has commenced a registered
offering (the “Offering”) of $400 million aggregate principal amount of its senior notes due 2020
(the “New Notes”). AK Steel intends to use the net proceeds of the offering, together with cash on
hand, to finance AK Steel’s cash tender offer and consent solicitation (the “Tender Offer”), also
announced today, for any and all of AK Steel’s outstanding 7 3/4% Senior Notes due 2012 (the “Old
Notes”). The Offering will be made pursuant to an effective shelf registration statement on file
with the Securities and Exchange Commission.
The joint book-running managers for the Offering are Credit Suisse, BofA Xxxxxxx Xxxxx, X.X.
Xxxxxx, Xxxxxx Xxxxxxx, UBS Investment Bank and Xxxxx Fargo Securities.
Simultaneously with the Offering, AK Steel has commenced the Tender Offer pursuant to an Offer
to Purchase and Consent Solicitation Statement, dated April 26, 2010, and a related Letter of
Transmittal and Consent. Upon the terms and subject to the conditions described in the Offer to
Purchase and the Letter of Transmittal, AK Steel is offering to purchase for cash any and all of
its outstanding Old Notes and soliciting consents to certain proposed amendments to the indenture
governing the Old Notes to, among other things, eliminate substantially all of the restrictive
covenants and certain events of default contained in the indenture.
Holders of Old Notes who
validly tender their Old Notes and deliver their consents on or prior to 5:00 p.m., New York City
time, Friday, May 7, 2010 (the “Consent Date”) will be eligible to receive aggregate consideration
equal to $1,003.50 per $1,000 principal amount of Old Notes tendered, which includes a consent
payment of $30.00 per $1,000 principal amount of Old Notes.
Holders who tender their Old Notes
after the Consent Date but prior to the expiration
time of 11:59 p.m., New York City time, on Friday, May 21, 2010 (the “Expiration Time”) will
only receive $973.50 per $1,000 principal amount of Old Notes tendered. Tendered Old Notes may be
validly withdrawn on or prior to the earlier of the receipt of the Requisite Consents (as defined
below) and 5:00 p.m. New York time, Friday, May 7, 2010, but not thereafter unless required by
applicable law.
Holders may not tender their Old Notes without delivering their consents to the proposed
amendments to the indenture for the Old Notes and may not deliver their consents without tendering
their Old Notes pursuant to the tender offer. The proposed amendments require the approval of a
majority of the aggregate principal amount of the outstanding Old Notes (“Requisite Consents”). If
so approved, however, the proposed amendments will not become operative until after AK Steel has
paid the consent payment to all holders that have validly tendered (and not validly revoked)
consents on or prior to the Consent Date.
AK Steel’s obligation to accept for purchase and to pay for the Old Notes in the Tender Offer
is subject to the satisfaction or waiver of a number of conditions, including having available
pursuant to the issuance of the New Notes, together with approximately $130 million of cash on
hand, funds sufficient to pay the Total Consideration, plus accrued and unpaid interest, for all
the Old Notes tendered in the Tender Offer.
In addition to the applicable consideration, all holders of Old Notes accepted for purchase
will also receive accrued and unpaid interest on those Old Notes from the last interest payment
date to, but not including, the date such Old Notes are repurchased.
If any Old Notes remain outstanding following the completion of the Tender Offer, AK Steel
intends to, but is not obligated to, promptly redeem such Old Notes in accordance with the terms of
the Old Notes and the indenture.
None of AK Steel, AK Steel’s board of directors, the dealer managers, the depositary and the
information agent makes any recommendation in connection with the Tender Offer. Holders must make
their own decisions as to whether to tender their Old Notes, and, if so, the principal amount of
Old Notes to tender.
AK Steel has retained Credit Suisse and BofA Xxxxxxx Xxxxx to serve as Dealer Managers for the
Tender Offer. AK Steel has also retained Global Bondholder Services Corporation to serve as the
information agent.
For additional information regarding the terms of the Tender Offer, please contact Credit
Suisse at (000) 000-0000 or toll free (000) 000-0000 or BofA Xxxxxxx Xxxxx at (000) 000-0000 or
toll free (000) 000-0000. Requests for documents and questions regarding the tender of Old Notes
and delivery of consents may be directed to Global Bondholder Services Corporation at (000)
000-0000.
This announcement does not constitute an offer to sell or the solicitation of an offer to buy
the New Notes in the Offering, nor shall there be any sale of such notes in any state in which such
offer, solicitation or sale would be unlawful prior to registration or qualification under the
securities laws of any such state.
AK Holding and AK Steel have filed a registration statement (including a prospectus) with the
SEC relating to the Offering. Before you invest, you should read the prospectus in that
registration statement and other documents AK Holding and AK Steel have filed with the SEC for more
complete information about AK Holding and AK Steel and the Offering. You may get these documents
for free by visiting XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, AK Holding, AK Steel,
any underwriter or any dealer participating in the Offering will arrange to send you the prospectus
if you request it by contacting Credit Suisse at Attention: Xxxxxxxxxx Xxxxxxxxxx, Xxx Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000 (0-000-000-0000), BofA Xxxxxxx Xxxxx at Attention: Xxxxxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx Xxxx, Xxx Xxxx, XX, 00000 (0-000-000-0000 or
xx.xxxxxxxxxx_xxxxxxxxxxxx@xxxxxxxxxxxxxx.xxx); X.X. Xxxxxx at X.X. Xxxxxx Securities Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Xxxxxx Xxxxxxx at xxxxxxxxxx@xxxxxxxxxxxxx.xxx; UBS
Investment Bank at Attention: Leveraged Capital Markets, 000 Xxxxxxxxxx Xxxx., Xxxxxxxx,
Xxxxxxxxxxx 00000 (0-000-000-0000 ex. 1088); or Xxxxx Fargo Securities at Xxxxx Fargo Securities,
LLC, Attention: Syndicate Operations; 0000 Xxxx X.X. Xxxxxx Xxxx., MAC D1109-010, Xxxxxxxxx, Xxxxx
Xxxxxxxx, 00000 (0-000-000-0000).
Forward-Looking Statements
Some of the statements in this press release are intended to be, and hereby are identified as
“forward-looking statements” for purposes of the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. The company cautions readers that such forward-looking statements
involve risks and uncertainties that could cause actual results to differ materially from those
currently expected by management, including those risks and uncertainties discussed in AK Steel
Holding Corporation’s Annual Report on Form 10-K for the year ended December 31, 2009, AK Steel
Holding Corporation’s Quarterly Reports on Form 10-Q for the quarter ended March 31, 2010. Except
as required by law, the company disclaims any obligation to update any forward-looking statements
to reflect future developments or events.
About AK Steel
AK Steel produces flat-rolled carbon, stainless and electrical steels, primarily for
automotive, appliance, construction and electrical power generation and distribution markets. The
company employs about 6,200 men and women in Middletown, Mansfield, Coshocton and Zanesville, Ohio;
Butler, Pennsylvania; Ashland, Kentucky; Rockport, Indiana; and its corporate headquarters in West
Xxxxxxx, Ohio.
AK Tube LLC, a wholly owned subsidiary of AK Steel, employs about 300 men and women in plants
in Walbridge, Ohio and Columbus, Indiana. AK Tube produces carbon and stainless electric
resistance welded (ERW) tubular steel products for truck, automotive and other markets.
Filed pursuant to Rule 433
April 27, 2010
April 27, 2010
Relating to
Preliminary Prospectus Supplement dated April 26, 2010 to
Prospectus dated April 26, 2010
Registration Statement No. 333-166303
Preliminary Prospectus Supplement dated April 26, 2010 to
Prospectus dated April 26, 2010
Registration Statement No. 333-166303
AK Steel Corporation
Pricing Term Sheet
$400,000,000 7.625% Notes due 2020
Issuer:
|
AK Steel Corporation | |
Guarantee:
|
The Notes will be fully and unconditionally guaranteed on a senior unsecured basis by AK Steel Holding Corporation, the parent of AK Steel Corporation. | |
Security Type:
|
Senior Notes | |
Ratings:*
|
Ba3/BB | |
Pricing Date:
|
April 27, 2010 | |
Settlement Date:
|
May 11, 2010 (T + 10) | |
Principal Amount:
|
US $400,000,000 | |
Maturity:
|
May 15, 2020 | |
Benchmark:
|
3.625% UST Due 02/15/2020 | |
Benchmark Yield:
|
3.690% | |
Spread to Benchmark:
|
394 bps | |
Coupon:
|
7.625% | |
Price to Public:
|
100.000% | |
Yield to Maturity:
|
7.625% | |
Interest Payment Dates:
|
May 15 and November 15, commencing November 15, 2010 |
|
Optional Redemption: |
The notes will be redeemable at AK Steel’s option at any time before May 15, 2015 at a redemption price equal to the principal amount of existing notes being redeemed plus a “make-whole” premium of the Treasury Rate as of such redemption date plus 50 basis points plus accrued and unpaid interest to the redemption date. | |
The notes will be redeemable at AK Steel’s option, in whole or in part, at any time on and after May 15, 2015 at the redemption price for the notes (expressed as a percentage of principal amount) set forth below, plus accrued and unpaid interest to the redemption date, if redeemed during the twelve-month period commencing on May 15th of the years indicated below: |
Redemption | ||||
Year | Price | |||
2015 |
103.813 | % | ||
2016 |
102.542 | % | ||
2017 |
101.271 | % | ||
2018 (and thereafter) |
100.000 | % |
At any time prior to May 15, 2013, AK Steel may redeem up to 35% of the principal amount of the notes with the proceeds of offerings of AK Holding’s shares of common stock at a redemption price of 107.625% of the principal amount of the notes, plus accrued and unpaid interest to the redemption date, if any. | ||
CUSIP/ISIN:
|
001546 AL4 / US001546AL46 |
Use of Proceeds:
|
We intend to use the net proceeds from this offering, together with cash on hand, to pay the consideration for the Cash Tender Offer plus any consent payments and accrued and unpaid interest and estimated offering expenses payable by us. | |
Joint Book-Running Managers: |
Credit Suisse Securities (USA) LLC |
|
Banc of America Securities LLC | ||
X.X. Xxxxxx Securities Inc. | ||
Xxxxxx Xxxxxxx & Co. Incorporated | ||
UBS Securities LLC | ||
Xxxxx Fargo Securities, LLC | ||
Co-Managers:
|
Fifth Third Securities, Inc. | |
PNC Capital Markets LLC | ||
Citigroup Global Markets Inc. | ||
Deutsche Bank Securities Inc. |
* | Note: A credit rating of a security is not a recommendation to buy, sell or hold securities and may be subject to review, revision, suspension, reduction or withdrawal at any time by the assigning rating agency. |
AK Steel Corporation and AK Steel Holding Corporation have filed a registration statement
(including a base prospectus) and a prospectus supplement with the U.S. Securities and Exchange
Commission (SEC) for the offering to which this communication relates. Before you invest, you
should read the prospectus supplement for this offering, the prospectus in that registration
statement and any other documents filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by searching the SEC online database
(XXXXX) on the SEC web site at xxxx://xxx.xxx.xxx. Alternatively, AK Steel Corporation, AK Steel
Holding Corporation, any underwriter or any dealer participating in the offering will arrange to
send you the prospectus supplement and prospectus if you request it by calling Credit Suisse
Securities (USA) LLC toll-free at 1-800-221-1037 or Banc of America Securities LLC Inc. toll-free
at 1-800-294-1322.
This pricing term sheet supplements the preliminary form of prospectus supplement issued by AK
Steel Corporation and AK Steel Holding Corporation on April 26, 2010 relating to its prospectus
dated April 26, 2010.
Any disclaimer or other notice that may appear below is not applicable to this communication and
should be disregarded. Such disclaimer or notice was automatically generated as a result of this
communication being sent by Bloomberg or another email system.
April 27, 2010
2
Exhibit A
[Form of Opinion from Weil, Gotshal & Xxxxxx]