Exhibit 4.5
FORM OF
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of ________ __, 1997, by and between HOWMET INTERNATIONAL INC.,
a Delaware corporation (the "Company"), and CARLYLE-BLADE ACQUISITION PARTNERS,
L.P., a Delaware limited partnership ("CBAP").
This Agreement is made pursuant to the IPO Agreement, dated as of
October 8, 1997 (the "IPO Agreement"), by and among the Company, CBAP, Thiokol
Corporation, a Delaware corporation ("Thiokol") and Thiokol Holding Company, a
Delaware corporation and a wholly-owned subsidiary of Thiokol ("Holding"). In
order to induce CBAP to enter into the IPO Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. (a) Specific Definitions.
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
Agent: Any Person authorized to act and who acts on behalf of a
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Holder with respect to the transactions contemplated by this Agreement.
Business Days: All days other than Saturday or Sunday or any day on
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which banking institutions in Washington, D.C. are authorized or obligated by
law to close.
Common Stock: Common Stock, par value $.0l per share, of the Company.
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Demand Registration: A registration pursuant to Section 3(a) hereof.
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Effective Date: The date the IPO is completed.
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Exchange Act: The Securities Exchange Act of 1934, as amended from
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time to time.
Holder: CBAP and, subject to Section 10(j), any affiliate of CBAP or
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any other Person acquiring Registrable Securities representing at least 5% of
the then outstanding shares of Common Stock; provided, however, that the term
"Holder" shall not include any Person who then holds fewer than 5% of the
outstanding shares of Common Stock and who may then sell Registrable Securities
in reliance upon Rule 144 promulgated under the Securities Act or any successor
rule or regulation.
IPO: The initial public offering of the Common Stock pursuant to the
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IPO Agreement.
Minimum Number: A number of Registrable Securities equal to 25% of
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the Registrable Securities held by CBAP immediately after giving effect to the
transactions contemplated by the IPO Agreement (i.e., the IPO, the Sale and any
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exercise of the Over-allotment Option and/or the 4% Option (as such terms are
defined in the IPO Agreement)), such number to be adjusted for any stock splits,
stock dividends or combinations of Registrable Securities after the date of this
Agreement.
NASD: The National Association of Securities Dealers, Inc.
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NYSE: The New York Stock Exchange, Inc.
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Person: An individual, firm, partnership, limited liability
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partnership, corporation, limited liability company, trust, incorporated or
unincorporated association, joint venture, joint stock company or a government
or agency or political subdivision thereof.
Piggy-Back Registration: A registration pursuant to Section 3(e)
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hereof.
Prospectus: The prospectus included in any Registration Statement, as
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amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
Registrable Securities: (a) All shares of Common Stock owned after
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the Effective Date by a Holder, and (b) any shares of capital stock of the
Company issued or issuable with respect to such Common Stock by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or reorganization; provided, however,
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that any such share or other security shall be deemed to be a Registrable
Security only if and so long as it is a Transfer Restricted Security.
Registration Statement: Any registration statement of the Company
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which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, and all exhibits
and all material incorporated by reference in such Registration Statement.
Securities Act: The Securities Act of 1933, as amended from time to
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time.
SEC: The United States Securities and Exchange Commission.
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Shareholders Agreement: The Shareholders Agreement, dated as of the
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date hereof, by and among Holding, CBAP and the Company.
Transfer Restricted Securities: Securities acquired by a Holder other
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than pursuant to an effective registration under Section 5 of the Securities Act
or pursuant to Rule 144; provided that a Security that has ceased to be a
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Transfer Restricted Security cannot thereafter become a Transfer Restricted
Security.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Company are sold (whether by the Company or by selling
stockholders) to an underwriter for reoffering to the public.
(b) Other Definitions. Other terms used herein may be defined
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elsewhere in this Agreement and, unless otherwise indicated, shall have such
defined meaning through this Agreement.
2. Securities Subject to this Agreement
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The securities entitled to the benefits of this Agreement are the
Registrable Securities.
3. Demand Registration and Piggy-Back Registration
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(a) Request for Registration by Holders of Registrable Securities. At
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any time following the earlier of the second anniversary of the Effective Date
or a Change of Control (as defined in the Shareholders Agreement) of Thiokol and
prior to the fifth anniversary of the Effective Date (the "Demand Period"), a
Holder or Holders may deliver to the Company a written request that the Company
effect a registration or qualification with respect to up to all of the
Registrable Securities, but in no event for an amount of Registrable Securities
less than the Minimum Number (a "Request"). Upon receipt of a Request, the
Company will
(1) within ten (10) days of receipt of such a request, give
written notice of the proposed registration or qualification to all other
Holders; and
(2) as soon as practicable use its best efforts to effect such
registration or qualification (including, without limitation, the execution
in the applicable Registration Statement of an undertaking to file required
post-effective amendments, appropriate qualification under the applicable
blue sky or other state securities laws and appropriate compliance with
exemptive regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as are
reasonably necessary to permit or facilitate the sale and distribution of
all or such portion of such Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of
any other Holder joining in such Request, Holding or the Company in the
case of primary Registrable Securities requested by the
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Company to be registered as are specified in a written notice given to the
Company within 20 days after the date of such written notice from the
Company pursuant to Section 3(a)(1); provided, however, that the Company
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will not be obligated to effect more than two registrations pursuant to
this Section 3(a) (plus up to an additional two registrations on Form S-3
(or successor Forms thereto)).
Notwithstanding anything to the contrary set forth in this Agreement,
the Company shall not be required to effect a Demand Registration within six
months after the effective date of any other Registration Statement of the
Company. In addition, notwithstanding anything to the contrary, if at the time
of any request to register Registrable Securities pursuant to this Section 3(a),
the Company is actively engaging, with the prior approval of the Company's Board
of Directors, in an Underwritten Offering as to which a Holder is eligible to
include Registrable Securities pursuant to Section 3(e) (subject to the
limitations and restrictions set forth in such Section 3(e)) or is engaged in
any other activity which, in the good faith determination of the Board of
Directors of the Company, would be adversely affected by the requested
registration to the substantial detriment of the Company, then the Company may
at its option direct (a "Directive") in writing within ten (10) days of receipt
of such Request that such Request be delayed (and, if the Holders of a majority
of the Registrable Securities initiating such request so elect, withdrawn) for a
period not in excess of six months from the date of such Directive, which right
to delay a Request may be exercised by the Company not more than once during any
two-year period.
Subject to the foregoing provisions, the Company will file a
registration statement covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the Request, and shall use
its best efforts to cause such registration statement and prospectus through
which such Demand Registration is effected to remain effective, (i) in the case
of a firm commitment underwritten public offering, until each underwriter has
completed the distribution of all securities purchased by it and, (ii) in the
case of any other offering, until the earlier of the sale of all Registrable
Securities covered thereby or 120 days after the effective date thereof.
(b) Effective Registration and Expenses. A registration of Registrable
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Securities will not count as a Demand Registration until it has become effective
and has remained effective for the applicable period specified in Section 3(a).
The Company will pay Registration Expenses (as hereinafter defined) in
accordance with Section 6(a).
(c) Underwriter's Cutback. If the Holders of a majority in number of
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the Registrable Securities to be registered in a Demand Registration under this
Section 3 (or the Holder or Holders who initiated the Demand Registration) so
elect, the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of an Underwritten Offering. In such event, if
the managing underwriter or underwriters of such offering advise the Company and
the Holders in writing that in their opinion the Registrable Securities
requested to be included in such offering is sufficiently large so as to
materially and adversely affect the success of the offering, the
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Company will include in such registration the maximum amount of Registrable
Securities which in the opinion of such managing underwriter or underwriters can
be sold without any such material adverse effect (pro rata among the Holders who
have requested to be included in such registration pursuant to Section 3(a)).
(d) Selection of Underwriters. If any Demand Registration shall be in the
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form of an Underwritten Offering, the investment banker or bankers and manager
or managers that will administer the offering will be selected by Holders of a
majority in number of the Registrable Securities to be included in such
offering; provided that such investment bankers and managers must be reasonably
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satisfactory to the Company.
(e) Piggy-Back Registration. If during the Demand Period the Company
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determines to file a registration statement under the Securities Act relating to
a proposed sale to the public of shares of its securities (but excluding
registrations relating solely to employees' stock option or purchase plans or
relating solely to a transaction employing SEC Form S-4 or Form S-8 or successor
Forms thereto), either for its own account or the account of a security holder
or holders, the Company shall:
(1) promptly give each Holder written notice thereof (which will
include, to the extent known at the time, a list of the jurisdictions in
which the Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws, the proposed offering
price or price range, and the plan of distribution);
(2) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within 25 days after such written notice from the Company,
by any Holder; and
(3) use its best efforts to cause the managing underwriter or
underwriters of such proposed Underwritten Offering to permit the
Registrable Securities requested to be included in the registration
statement for such offering to be included on the same terms and conditions
as any similar securities of the Company included therein. Notwithstanding
the foregoing, if the managing underwriter or underwriters of such offering
deliver a written opinion to the Company and the Holders that marketing
considerations require a limitation on the number of shares of Common Stock
offered pursuant to any Registration Statement filed under this Section,
the Company will include in such registration (i) first, the securities the
Company proposes to sell and (ii) second, the Registrable Securities
requested to be included therein, which in the opinion of such underwriters
(after taking into account the securities to be sold pursuant to clause
(i)) can be sold without having a material adverse effect on the offering,
pro rata among the Holders on the basis of the number of Registrable
Securities owned by such Holders requested to be included in such
registration. The
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Company will bear all Registration Expenses in connection with such a
Piggy-Back Registration. Notwithstanding anything to the contrary herein,
if the managing underwriter or underwriters of such offering deliver a
written opinion to the Company and the Holders that marketing
considerations require that no shares of Registrable Securities be included
in such offering, then the Company may, after notice thereof to the Holders
of Registrable Securities requested to be included in such registration,
proceed with such offering without including therein such Registrable
Securities.
(f) Holding Rights Under Call Option and Right of First Refusal.
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The rights of any Holder to register shares under this Section 3 shall be
subject to any rights Holding may have under Article III of the Shareholders
Agreement.
4. Hold-Back Agreements
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(a) Restrictions on Public Sales by Holders. Each Holder agrees, if
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requested in writing by the managing underwriters in an Underwritten Offering,
with respect to any Underwritten Offering in which such Holder's Registrable
Securities are covered by a Registration Statement filed pursuant to Section 3
hereof, not to effect any public sale or distribution of securities of the
Company of the same class as the securities included in such Registration
Statement, including a sale pursuant to Rule 144 under the Securities Act
(except as part of such Underwritten Registration), during the 90-day period
following the effective date of the Registration Statement for each Underwritten
Offering made pursuant to such Registration Statement, in each case to the
extent timely notified in writing by the Company or the managing underwriters.
(b) Restrictions on Public Sale by the Company and Others.
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The Company agrees:
(1) not to effect any public sale or distribution of its equity
securities during the 30-day period prior to, and during the 90-day period
after, the effective date of any Underwritten Offering made pursuant to a
Registration Statement filed under Section 3 hereof, to the extent timely
requested in writing by the managing underwriters (except as part of such
Underwritten Registration or pursuant to registrations on Forms S-4 or S-8
or any successor form to such Forms); and
(2) to cause each holder of its privately placed equity securities
who beneficially owns at least one percent of any class of the Company's
outstanding equity securities issued by the Company at any time on or after
the date of this Agreement to agree not to effect any public sale or
distribution of any such securities during the period described in Section
4(b)(i) above, including a sale pursuant to Rule 144 under the Securities
Act (except as part of such Underwritten Registration, if permitted).
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5. Registration Procedures
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In connection with the Company's registration obligations pursuant to
Section 3 hereof, the Company will use its best efforts to effect such
registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company will as expeditiously as possible:
(a) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the Holders of the Registrable
Securities covered by such registration statement and the managing underwriters,
if any, copies of all such documents proposed to be filed, which documents will
be made available for review by such Holders and managing underwriters, and the
Company will not file any Registration Statement or amendment thereto or any
Prospectus or any supplement thereto to which the Holders of a majority in
number of the Registrable Securities covered by the Registration Statement or
the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective
amendments to any Registration Statement, and such supplements to the
Prospectus, as may be reasonably requested by the Holder or any managing
underwriter of Registrable Securities or as may be required by the rules,
regulations or instructions applicable to the registration form utilized by the
Company or by the Securities Act or otherwise necessary to keep such
Registration Statement effective for the applicable period and cause the
Prospectus as so supplemented to be filed pursuant to Rule 424 under the
Securities Act; and comply with the provisions of the Securities Act;
(c) notify the selling Holders and the managing underwriters, if any,
promptly, and (if requested by any such Person) confirm such advice in writing,
(1) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become
effective,
(2) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional information,
(3) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose,
(4) if at any time the representations and warranties of the
Company contemplated by paragraph (n) below cease to be true and correct,
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(5) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, and
(6) of the existence of any fact which results in the Registration
Statement, the Prospectus or any document incorporated therein by reference
containing an untrue statement of material fact or omitting to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(d) use best efforts to obtain the withdrawal of any order suspending
the effectiveness of the Registration Statement at the earliest possible moment;
(e) if reasonably requested by the managing underwriter or underwriters
or a selling Holder, as promptly as practicable incorporate in a Prospectus
supplement or post-effective amendment such necessary information as the
managing underwriters and the Holders of a majority in number of the Registrable
Securities being sold reasonably request to have included therein relating to
the plan of distribution with respect to such Registrable Securities, including,
without limitation, information with respect to the amount of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as promptly as practicable
after being notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(f) at the request of any selling Holder, furnish to such Holder and
each managing underwriter, without charge, such number of conformed copies of
the Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference) as such
Holder may reasonably request;
(g) deliver to each selling Holder and the underwriters, if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons may reasonably request;
the Company consents to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holder and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(h) in connection with any public offering of Registrable Securities,
register or qualify or cooperate with the selling Holders, the managing
underwriters, if any, and their respective counsel in connection with the
registration or qualification of
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such Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as any seller or underwriter reasonably requests in
writing and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Registrable Securities covered by
the Registration Statement; provided that the Company will not be required
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to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and, if not required by
applicable law, not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by
the applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(k) if any fact contemplated by paragraph (c)(6) above shall exist, use
its best efforts to prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the Holders of the Registrable Securities, the Prospectus will not
contain an 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;
(l) use its best efforts to cause all Registrable Securities covered by
the Registration Statement to be listed on the NYSE;
(m) not later than the effective date of the applicable Registration
Statement, provide a CUSIP number for all Registrable Securities and provide the
applicable trustees or transfer agents with printed certificates for the
Registrable Securities which are in a form eligible for deposit with Depositary
Trust Company;
(n) with respect to an Underwritten Offering or other transaction in
which an investment banking firm significantly participates, enter into
customary agreements with investment bankers and underwriters (including
underwriting agreements in customary form) and take all other appropriate
actions that the underwriter or investment banker may reasonably request in
order to expedite or facilitate the disposition of such Registrable Securities
and in such connection:
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(1) make such representations and warranties to the selling
Holders and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary Underwritten
Offerings or in the type of offering in which the investment bank is
significantly participating;
(2) obtain opinions of counsel to the Company and updates thereof
addressed to each selling Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in Underwritten Offerings
or in the type of offering in which the investment bank is significantly
participating and such other matters as may be reasonably requested by such
underwriters or other participating investment banks;
(3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to selling
Holders and the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with primary Underwritten Offerings;
(4) if an underwriting agreement is entered into, cause the same
to set forth in full the indemnification provisions and procedures of
Section 7 hereof (or such other substantially similar provisions and
procedures as the underwriters shall reasonably request) with respect to
all parties to be indemnified pursuant to said Section; and
(5) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable Securities being
sold and the managing underwriters, if any, to evidence compliance with
paragraph (k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
The above shall be done at the effectiveness of such Registration Statement,
each closing under any underwriting or similar agreement as and to the extent
required thereunder and from time to time as may reasonably be requested by the
underwriter or other participating investment bank, all in a manner consistent
with customary industry practice;
(o) make available to a representative of the Holders of a majority in
number of the Registrable Securities, any managing underwriter participating in
any disposition pursuant to such Registration Statement, and any attorney or
accountant retained by the sellers or managing underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors and employees to supply all information
reasonably requested (taking into account the number of Registrable Securities
held by the requesting Holder) by any such representative, underwriter, attorney
or accountant in connection with the registration, with respect to each at such
time or times as the Company shall reasonably determine; provided that any
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records, information
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or documents that are designated by the Company in writing as confidential shall
be kept confidential by such Persons unless disclosure of such records,
information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC, and make generally available to its security
holders, earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(q) cooperate and assist in any filings required to be made with the
NASD and/or the NYSE and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD); and
(r) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) provide copies of such
document to counsel to the selling Holders and to the managing underwriters, if
any, make the Company's representatives available for discussion of such
document and make such changes in such document prior to the filing thereof as
counsel for such selling Holder or underwriters may reasonably request.
The Company may require each selling Holder to furnish to the Company
such information regarding such Holder and the distribution of such securities
as the Company may from time to time reasonably request in writing.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in paragraph (k) above, such Holder will forthwith discontinue
disposition of Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by paragraph (k) above,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the Prospectus, and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods mentioned in Section 4(a) hereof shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when each selling Holder
either receives the copies of the supplemented or amended prospectus
contemplated by paragraph (k) above or is advised in writing by the Company that
the use of the Prospectus may be resumed.
Nothing set forth in this Section 5 is intended to impair the Company
from making filings required under the Exchange Act on a timely basis; provided,
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however,
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that the Company shall provide drafts of such filings to selling Holders at
least five Business Days prior to the date the filing thereof is due and shall
cooperate with such Holders with respect to such filings and make such changes
or modifications to such filings as may be reasonably requested (in light of the
requirements of applicable law) by such Holders or its counsel.
6. Registration Expenses
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(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be paid by the Company, regardless whether the
Registration Statement becomes effective (unless (i) the offering to which the
Registration Statement applies shall be withdrawn at the request of the Holder
who initiated the Demand Registration not as a result of a breach by the Company
of its obligations hereunder and (ii) such Holder notifies the Company that such
offering shall not count as a Demand Registration, in which case all such
expenses shall be paid by such Holder). Without limiting the foregoing, the
Company shall pay all expenses incident to a Demand Registration that has not
become and remained effective for the period specified in Section 3(a), other
than as a result of a withdrawal at the request of the Holders. The expenses to
be paid by the Company shall include, without limitation:
(1) all registration and filing fees (including, without
limitation, with respect to filings and registrations required to be made
with the NASD and/or NYSE);
(2) fees and expenses of compliance with securities or blue sky
laws (including, without limitation, fees and disbursements of counsel for
the underwriters in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for
investment under the laws of such jurisdictions as the managing
underwriters or the Holders of a majority of the Registrable Securities
being sold may designate);
(3) printing (including, without limitation, expenses of printing
or engraving certificates for the Registrable Securities in a form eligible
for deposit with Depositary Trust Company and of printing prospectuses),
messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the Company, the
underwriters and for the selling Holders;
(5) fees and disbursements of all independent certified public
accountants of the Company (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to
such performance);
(6) fees and expenses of other Persons retained by the Company;
and
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(7) fees and expenses associated with any NASD and/or NYSE filing
required to be made in connection with the Registration Statement (all such
expenses being herein called "Registration Expenses").
Registration Expenses shall not include fees, discounts, commissions
or disbursements of underwriters, selling brokers, dealer managers or similar
securities professionals relating to the distribution of the Registrable
Securities or legal expenses of any Person other than the Company and the
selling Holders.
(b) The Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing of the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed, rating agency fees and the
fees and expenses of any Person, including special experts, retained by the
Company.
7. Indemnification
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(a) Indemnification by the Company. The Company agrees to indemnify
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and hold harmless each Holder, its officers, directors, employees and Agents and
each Person who controls the Holder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act (each such person being
sometimes hereinafter referred to as an "Indemnified Holder") from and against
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and legal expenses) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or based upon any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses arise out of or
are based upon any such untrue statement or omission or allegation thereof based
upon information furnished in writing to the Company by such holder expressly
for use therein; provided, however, that the Company shall not be liable in any
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such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus if (i) such
Holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale of Registrable Securities and (ii)
the Prospectus would have corrected such untrue statement or omission; and
provided, further, that the Company shall not be liable in any such case to the
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extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished
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by or on behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the person asserting such loss, claim, damage, liability or expense
who purchased such Registrable Security which is the subject thereof from such
Holder. This indemnity will be in addition to any liability which the Company
may otherwise have. The Company will also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Indemnified Holders of Registrable
Securities.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against an Indemnified Holder in
respect of which indemnity may be sought from the Company, such Indemnified
Holder shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses. Such
Indemnified Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be the expense of such Indemnified Holder unless (a) the
Company has agreed to pay such fees and expenses or (b) the Company shall have
failed to assume the defense of such action or proceeding or has failed to
employ counsel reasonably satisfactory to such Indemnified Holder in any such
action or proceeding or (c) if the representation of such Indemnified Holder by
the counsel retained by the Company would be inappropriate due to actual or
potential differing interests between the Indemnified Holder and any other party
represented by such counsel in such proceeding (in which case, if such
Indemnified Holder notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Holder, it being understood, however, that the Company shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time for
such Indemnified Holder and any other Indemnified Holders, which firm shall be
designated in writing by such Indemnified Holders). The Company shall not be
liable for any settlement of any such action or proceeding effected without its
written consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the Company agrees
to indemnify and hold harmless such Indemnified Holders from and against any
loss or liability by reason of such settlement or judgment.
(b) Indemnification by Holder of Registrable Securities. Each Holder
---------------------------------------------------
agrees to indemnify and hold harmless the Company, its directors and officers
and each Person, if any, who controls the Company within the meaning of either
Section 15
14
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Holder, but only with respect
to information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement or Prospectus, or any amendment
or supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person, in respect of which indemnity may be sought against
a Holder, such Holder shall have the rights and duties given the Company and the
Company or its directors or officers or such controlling person shall have the
rights and duties given to each Holder by the preceding paragraph. In no event
shall the liability of any selling Holder under this Section 7(b) be greater in
amount than the dollar amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
The Company shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement or any
amendment or supplement thereto, or any preliminary prospectus.
(c) Contribution. If the indemnification provided for in this Section
------------
7 is unavailable to an indemnified party under Section 7(a) or Section 7(b)
hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Company, on the one hand, and of the Indemnified Holder, on the other hand,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Indemnified Holder, on the other hand, 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 or by the Indemnified Holder and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 7(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(c) were determined by pro
rata
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allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(c), an Indemnified Holder shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by such Indemnified Holder
or its affiliated Indemnified Holders and distributed to the public were offered
to the public exceeds the amount of any damages which such Indemnified Holder,
or its affiliated Indemnified Holders, 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. Rule 144
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The Company will use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Exchange Act or the Securities Act and, at the request of any Holder who
proposes to sell securities in compliance with Rule 144 promulgated under the
Securities Act (or any successor rule), as such rule may be amended from time to
time, the Company will (i) forthwith furnish to the Holder a written statement
of compliance with the filing requirements of the Commission as set forth in
Rule 144, and (ii) make available to the public and such Holder such information
as will enable such Holder to make sales pursuant to Rule 144 (or any successor
rule).
9. Participation in Underwritten Registrations
-------------------------------------------
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the underwriters
and other Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
-------------
(a) Remedies. Each Holder, in addition to being entitled to exercise
--------
all rights provided herein and granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the
--------------------------
date of this Agreement enter into any agreement with respect to its securities
which is
16
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof or impairs the rights granted
hereunder. The Company has not previously entered into any agreement with
respect to its securities granting any registration rights to any Person which
has not been terminated on or prior to the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least 85% of the outstanding Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the Holders of 50% or more of
the Registrable Securities being sold.
(d) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to CBAP or any affiliate of CBAP, The Carlyle Group, 0000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X.
Xxxxxx, with a copy to: Xxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X.,
Xxxxx 0000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxx X. Xxxxxxxxx;
(2) if to any other Holder, at the most current address given by
such Holder to the Company; and
(3) if to the Company, to Howmet International Inc., 000 Xxxxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000-0000, Attention: General Counsel, with a
copy to: Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx X. Xxxxxxxx.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when received if
deposited in the mail, postage prepaid, if mailed; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
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(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings as to the subject matter, other than those set forth
or referred to herein with respect to the registration rights granted by the
Company with respect to the securities sold pursuant to the Purchase Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(j) Successors and Assigns. The rights and obligations granted to CBAP
----------------------
pursuant to this Agreement may be transferred to any affiliate of CBAP or to any
Person acquiring Registrable Securities representing at least 5% of the then
outstanding shares of Common Stock; provided, however, that the transferee will
provide written notice to the Company stating the name and address of the
transferee, identifying the securities with respect to which such rights have
been assigned and agreeing to be bound by this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HOWMET INTERNATIONAL INC.
By
------------------------------------
Name:
Title:
CARLYLE-BLADE ACQUISITION
PARTNERS, L.P.
By: CARLYLE PARTNERS II, L.P.
Its: General Partner
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By: TC GROUP, L.L.C.
Its: General Partner
By: TCG HOLDINGS COMPANY
Its: Managing Member
By:
-------------------------------------
Name:
Title:
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