EXHIBIT 1.1
15,000,000 SHARES
HOWMET INTERNATIONAL INC.
COMMON STOCK, $0.01 PAR VALUE PER SHARE
FORM OF
UNDERWRITING AGREEMENT
. , 1997
. , 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Brothers International (Europe)
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
Carlyle-Blade Acquisition Partners, L.P., a Delaware limited partnership (the
"SELLING SHAREHOLDER"), proposes to sell to the several Underwriters (as defined
below) 15,000,000 shares of Common Stock, $0.01 par value per share (the "FIRM
SHARES"), of Howmet International Inc., a Delaware corporation (the "COMPANY").
It is understood that, subject to the conditions hereinafter stated,
12,000,000 Firm Shares (the "U.S. FIRM SHARES") will be sold by the Selling
Shareholder to the several U.S. Underwriters named in Schedule I hereto (the
"U.S. UNDERWRITERS") in connection with the offering and sale of such U.S. Firm
Shares in the United States and Canada to United States and Canadian Persons (as
such terms are defined in the Agreement Between U.S. and International
Underwriters of even date herewith), and 3,000,000 Firm Shares (the
"INTERNATIONAL SHARES") will be sold to the several International Underwriters
named in Schedule II hereto (the "INTERNATIONAL UNDERWRITERS") in connection
with the offering and sale of such International Shares outside the United
States and Canada to persons other than United States and Canadian Persons.
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxx Brothers Inc. shall act as
representatives (the "U.S. REPRESENTATIVES") of the several U.S. Underwriters,
and Xxxxxx Xxxxxxx & Co. International Limited and Xxxxxx Brothers International
(Europe) shall act as representatives (the "INTERNATIONAL REPRESENTATIVES") of
the several International Underwriters. The U.S. Underwriters and the
International Underwriters are hereinafter collectively referred to as the
Underwriters.
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The Selling Shareholder also proposes to sell to the several U.S. Underwriters
not more than an additional 2,250,000 shares of Common Stock, $0.01 par value
per share, of the Company (the "ADDITIONAL SHARES"), if and to the extent that
the U.S. Representatives shall have determined to exercise, on behalf of the
U.S. Underwriters, the right to purchase such shares of common stock granted to
the U.S. Underwriters in Section 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES". The
outstanding shares of Common Stock, $0.01 par value per share, of the Company
are hereinafter referred to as the "COMMON STOCK".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the Shares: the U.S. prospectus, to be used in connection with the
offering and sale of Shares in the United States and Canada to United States and
Canadian Persons, and the international prospectus, to be used in connection
with the offering and sale of Shares outside the United States and Canada to
persons other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the outside front
cover page. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. prospectus and the
international prospectus in the respective forms first used to confirm sales of
Shares are hereinafter collectively referred to as the "PROSPECTUS". If the
Company has filed an abbreviated registration statement to register additional
shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the
"RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
As part of the offering contemplated by this Agreement, Xxxxxx Xxxxxxx & Co.
Incorporated ("XXXXXX XXXXXXX") has agreed to reserve out of the Shares set
forth opposite its name on Schedule I to this Agreement, up to [900,000] shares,
for sale to the Company's employees, officers, and directors and other parties
associated with or related to the Company (collectively, "PARTICIPANTS"), as set
forth in the Prospectus under the heading "Underwriters--Directed Share Program"
(the "DIRECTED SHARE PROGRAM"). The Shares to be sold by Xxxxxx Xxxxxxx
pursuant to the Directed Share Program (the "DIRECTED SHARES") will be sold by
Xxxxxx Xxxxxxx pursuant to this Agreement at the public offering price. Any
Directed Shares not orally confirmed for purchase by any Participants by the end
of the first business day after the date on which this Agreement is executed
will be offered to the public by Xxxxxx Xxxxxxx as set forth in the Prospectus.
1. Representations and Warranties of the Company. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
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(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each Significant Subsidiary (as defined in Regulation S-X
promulgated by the Commission) of the Company has been duly incorporated,
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock of each Significant
Subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and are owned directly by the Company or
indirectly by the Company through a subsidiary of the Company, free and
clear (except as otherwise disclosed in the Prospectus) of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
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(g) The outstanding shares of Common Stock (including the Shares to be
sold by the Selling Shareholder) have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement do not and will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any of its Significant
Subsidiaries or any agreement, contract, bond, indenture or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations
under this Agreement, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Shares.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(j) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(k) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(l) The Company is not an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(m) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, (1) the Company and
its subsidiaries have not incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in the
ordinary course of business; (2) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (3) there has not been any material
change in the capital
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stock, short-term debt or long-term debt of the Company and its
consolidated subsidiaries, except in each case as described in or
contemplated by the Prospectus.
(n) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held
under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries, in each
case except as described in or contemplated by the Prospectus.
(o) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) No material labor dispute with the employees of the Company or any
of its subsidiaries exists, except as described in or contemplated by the
Prospectus, or, to the knowledge of the Company or any of its subsidiaries,
is imminent; and the Company or any of its subsidiaries are not aware of
any existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers or contractors that could
have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(q) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such subsidiary has been refused
any insurance coverage sought or applied for; and neither the Company nor
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 have a material adverse
effect on the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus.
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(r) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses (except for such failures to possess as would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole), and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by
the Prospectus.
(s) Except as set forth in the Prospectus, the Company and its
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(t) Except as set forth in the Prospectus, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(u) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with management's general
or specific authorizations; and (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability.
(v) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement, except as described in the Prospectus.
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(w) The Company and each of its subsidiaries have complied with all
provisions of Section 517.075, Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate located in
Cuba.
Furthermore, the Company represents and warrants to Xxxxxx Xxxxxxx that (i)
the Registration Statement, the Prospectus and any preliminary prospectus
comply, and any further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and that (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States.
2. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder represents and warrants to and agrees with each of the
Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by
the Selling Shareholder.
(b) The execution and delivery by the Selling Shareholder of, and the
performance by the Selling Shareholder of its obligations under, this
Agreement and the Letter of Transmittal and Custody Agreement (the "Custody
Agreement") signed by the Selling Shareholder and First Chicago Trust
Company of New York, as Custodian, relating to the deposit of the Shares
(the "CUSTODY AGREEMENT") will not contravene any provision of applicable
law, or the certificate of limited partnership, limited partnership
agreement or other organizational documents (if any) of the Selling
Shareholder, or any agreement or other instrument binding upon the Selling
Shareholder or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Selling Shareholder, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Selling
Shareholder of its obligations under this Agreement or the Custody
Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares.
(c) The Selling Shareholder is the registered owner of the Shares and
no person, other than the Selling Shareholder and the legal and beneficial
owners of limited and general partnership interests in the Selling
Shareholder, has any legal or beneficial interest in any of the Shares, and
the Selling Shareholder has, and on the Closing Date and any Option Closing
Date (as defined in Section 5) will have, valid title to the Shares and the
legal right and power, and all authorization and approval required by law
or other instruments binding upon the Selling Shareholder, to enter into
this Agreement and the Custody Agreement and to sell, transfer and deliver
the Shares.
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(d) The Custody Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and is a valid and binding agreement
of the Selling Shareholder.
(e) Delivery of the Shares will pass title to the Shares to the
Underwriters, free and clear of any security interests, claims, liens,
equities and other encumbrances.
(f) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (ii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, provided that the representations and warranties set
forth in this paragraph only apply to the information pertaining to the
Selling Shareholder or Carlyle under the captions "Prospectus Summary--
Certain Transactions in Connection with the Offering," "Prospectus Summary-
-Relationship with Thiokol," "Certain Transactions in Connection with the
Offering," "The Company," "Principal Stockholders," "Relationship with
Thiokol" and "Arrangements Between the Company, Carlyle and Thiokol."
3. Agreements to Sell and Purchase. The Selling Shareholder hereby
agrees to sell to the several Underwriters, and each Underwriter, upon the basis
of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Selling Shareholder the respective numbers of Firm Shares set forth in
Schedules I and II hereto opposite its name at U.S.$. a share ("PURCHASE
PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Selling Shareholder
agrees to sell to the U.S. Underwriters the Additional Shares, and the U.S.
Underwriters shall have a one-time right to purchase, severally and not jointly,
up to 2,250,000 Additional Shares at the Purchase Price. If the U.S.
Representatives, on behalf of the U.S. Underwriters, elect to exercise such
option, the U.S. Representatives shall so notify the Selling Shareholder in
writing not later than 30 days after the date of this Agreement, which notice
shall specify the number of Additional Shares to be purchased by the U.S.
Underwriters and the date on which such shares are to be purchased. Such date
may be the same as the Closing Date (as defined below) but not earlier than the
Closing Date nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 5 hereof solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. If any Additional Shares are to be purchased, each U.S.
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
the U.S. Representatives may determine) that bears the same proportion to the
total number of Additional Shares to be purchased as the number of U.S. Firm
Shares set
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forth in Schedule I hereto opposite the name of such U.S. Underwriter bears to
the total number of U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period ending 180
days after the date of the Prospectus, (i) offer, issue, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option (except for options granted pursuant to the
Company's 1997 Stock Plan (as defined in the Prospectus)), right or warrant to
purchase, lend or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Shares to be sold hereunder, (B) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing or (C) any shares of Common Stock
issued pursuant to existing employee benefit plans by the Company described in
the Prospectus.
The Selling Shareholder hereby agrees that, without the prior written
consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, and it
will cause its subsidiaries (if any) not to, during the period ending 180 days
after the date of the Prospectus, (a) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(b) enter into any swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (a) or (b) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, (B) the sale of shares of Common Stock by the Selling Shareholder to
Thiokol Holding Company ("Holding"), a Delaware corporation and a wholly owned
subsidiary of Thiokol Corporation, a Delaware corporation ("Thiokol"), pursuant
to the FIRST THIOKOL OPTION (as defined in the Prospectus), (C) the execution
and delivery of the Amended and Restated Shareholders Agreement among the
Company, the Selling Shareholder, Thiokol and Holding, and the consummation of
the transactions contemplated by the IPO Agreement among the Company, the
Selling Shareholder, Thiokol and Holding or (D) transactions relating to shares
of Common Stock or other securities acquired in open market transactions after
the completion of the offering contemplated hereunder. In addition, the Selling
Shareholder agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, and it will cause its subsidiaries (if
any) not to, during the period ending 180 days after the date of the Prospectus,
make any demand for, or exercise any right with respect to, the registration of
any shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
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4. Terms of Public Offering. The Company and the Selling Shareholder are
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable. The
Company and the Selling Shareholder are further advised by you that the Shares
are to be offered to the public initially at U.S.$. a share (the "PUBLIC
OFFERING PRICE") and to certain dealers selected by you at a price that
represents a concession not in excess of U.S.$. a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of U.S.$. a share, to any Underwriter or to
certain other dealers.
5. Payment and Delivery. Payment for the Firm Shares shall be made to
the Selling Shareholder in Federal or other funds immediately available in New
York City against delivery of such Firm Shares for the respective accounts of
the several Underwriters at 10:00 a.m., New York City time, on ., 1997, or at
such other time on the same or such other date, not later than ., 1997, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to the Selling Shareholder
in Federal or other funds immediately available in New York City against
delivery of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than ., 1997, as shall be designated in writing by
the U.S. Representatives. The time and date of such payment are hereinafter
referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. Conditions to the Underwriters' Obligations. The obligations of the
Selling Shareholder to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
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(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) (i) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 6(a)(i) above and
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date; and
(ii) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by a general partner of
the Selling Shareholder, to the effect that the representations and
warranties of the Selling Shareholder contained in this Agreement are
true and correct as of the Closing Date and that the Selling
Shareholder has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied hereunder
on or before the Closing Date.
The officer signing and delivering such certificate for the Company
may rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Wachtell, Lipton, Xxxxx & Xxxx, counsel for the Company, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in
11
good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(ii) the outstanding shares of Common Stock (including the Shares
to be sold by the Selling Shareholder) have been duly authorized and
are validly issued, fully paid and non-assessable;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement do
not and will not contravene, to the best of such counsel's knowledge,
any applicable provision of the laws of New York (other than its
securities or Blue Sky laws), the Delaware General Corporation Law
(the "DGCL") or the federal laws of the United States, and do not and
will not contravene any provision of the certificate of incorporation
or by-laws of the Company, and no consent, approval, authorization or
order of, or filing with, any New York, Delaware or federal
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may
have been obtained under the Securities Act or as may be required by
the securities or Blue Sky laws of the various states or the United
States in connection with the purchase and distribution of the Shares
by the U.S. Underwriters;
(v) the statements (A) in the Prospectus under the captions
"Description of Capital Stock" and the second and third paragraphs
under "Shares Eligible for Future Sale" and (B) in the Registration
Statement in Items 14 and 15, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, accurately summarize the matters referred to
therein in all material respects;
(vi) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended; and
(vii) such counsel (A) is of the opinion that the Registration
Statement and Prospectus (except for financial statements and
schedules and other financial and statistical data included therein as
to which such counsel need not express any opinion) comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (B) shall state
that no facts have come to their attention that lead them to believe
that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief) the Registration Statement or the prospectus
included therein at the time the Registration Statement became
effective contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (C) shall state that
12
no facts have come to their attention that lead them to believe that
(except for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief)
the Prospectus contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
The opinion of Wachtell, Lipton, Xxxxx & Xxxx described in paragraph
(c) above shall be rendered to the Underwriters at the request of the
Company and shall so state therein. In rendering such opinion, such counsel
shall state that such opinion is limited to matters arising under the laws
of the State of New York, the DGCL and the federal laws of the United
States of America.
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx X. Xxxx, Vice President-General Counsel and Secretary of
the Company, dated the Closing Date, to the effect that:
(i) each Significant Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole;
(ii) all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by the Company or indirectly by the Company through a
subsidiary of the Company, free and clear (except as otherwise
disclosed in the Prospectus) of all liens, encumbrances, equities or
claims;
(iii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
do not and will not contravene any provision of the certificate of
incorporation or by-laws of any Significant Subsidiary of the Company
or, to the best of such counsel's knowledge, any agreement, contract,
bond, indenture, or other instrument binding upon the Company or any
of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any
subsidiary;
(iv) the statements in the Prospectus under the captions
"Description of Certain Indebtedness" and "Business--Legal Matters,"
in each case insofar as
13
such statements constitute summaries of legal matters, documents or
proceedings referred to therein, accurately summarize the matters
referred to therein in all material respects; and
(v) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and
are not so described or of any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
The opinion of Xxxxxx X. Xxxx described in paragraph (d) above shall
be rendered to the Underwriters at the request of the Company and shall so
state therein.
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx, counsel for the Selling Shareholder, dated the
Closing Date, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by the Selling Shareholder;
(ii) the Custody Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and is a valid and binding
agreement of the Selling Shareholder;
(iii) the Selling Shareholder was organized under and is subject
to the Delaware Revised Uniform Limited Partnership Act (the "Delaware
Act"); the execution and delivery by the Selling Shareholder of, and
the performance by the Selling Shareholder of its obligations under,
this Agreement and the Custody Agreement will not contravene any
federal or New York statute, rule or regulation which, to the best of
such counsel's knowledge, is applicable to the Selling Shareholder or
any provision of the Delaware Act or of the certificate of limited
partnership, limited partnership agreement or other organizational
documents (if any) of the Selling Shareholder or, to the best of such
counsel's knowledge, any material agreement or other material
instrument binding upon the Selling Shareholder or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Selling Shareholder; and, to the best of such counsel's knowledge, no
consent, approval, authorization or order of, or filing with, any
federal, New York or Delaware governmental body or agency is required
for the performance by the Selling Shareholder of its obligations
under this Agreement or the Custody Agreement, except such as may have
been obtained under the Securities Act or such as may be required
under state
14
securities laws in connection with the purchase and distribution of
the Shares by the Underwriters;
(iv) the Selling Shareholder has the legal right and power, and
all authorizations and approvals required by the Delaware Act or, to
the best knowledge of such counsel, by federal or New York law or any
instruments binding upon the Selling Shareholder, to enter into this
Agreement and the Custody Agreement and to sell, transfer and deliver
the Shares;
(v) the Selling Shareholder is the registered owner of the
Shares. Upon delivery of the Shares and payment of the consideration
therefor pursuant to this Agreement, the Underwriters will acquire all
of the rights of the Selling Shareholder in the Shares, free of any
adverse claim (as defined in Section 8-302 of the Uniform Commercial
Code as in effect in the State of New York (the "UCC")), assuming that
the Underwriters purchased such Shares in good faith and without
notice of any adverse claim (within the meaning of Section 8-302 of
the UCC).
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
the Selling Shareholder and Thiokol, counsel to the Company and
Thiokol, representatives of the independent public accountants for the
Company, and your representatives, at which the contents of the
Registration Statement and the Prospectus and related matters were
discussed and, although they are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
and have not made any independent check or verification thereof,
during the course of such participation (relying as to materiality to
a large extent upon statements of factual matters of officers and
other representatives of the Company), nothing came to their attention
that caused them to believe that the Registration Statement or the
prospectus included therein at the time the Registration Statement
became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, it being understood that such counsel need express no
belief with respect to the financial statements and schedules and
other financial and statistical data included in the Registration
Statement or the Prospectus; provided that the statements set forth in
this paragraph only apply to the information pertaining to the Selling
Shareholder and Carlyle under the captions "Prospectus Summary--
Certain Transactions in Connection with the Offering," "Prospectus
Summary--Relationship with Thiokol," "Certain Transactions in
Connection with the Offering," "The Company," "Principal
15
Stockholders," "Relationship with Thiokol" and "Arrangements Between
the Company, Carlyle and Thiokol."
The opinion of Xxxxxx & Xxxxxxx described in paragraph (e) above shall
be rendered to the Underwriters at the request of the Selling Shareholder
and shall so state therein.
(f) The Underwriters shall have received, on or prior to the date of
this Agreement, an agreement signed by an executive officer of Thiokol to
the effect set forth in Exhibit A hereto.
(g) The Underwriters shall have received on the Closing Date an
opinion of Xxxxx & Wood LLP, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 6(c)(iii) and
6(c)(vii) above and to the effect that the statements in the Prospectus
under the captions "Prospectus Summary--Certain Transactions in Connection
with the Offering," "Prospectus Summary--Relationship with Thiokol,"
"Certain Transactions in Connection with the Offering," "Relationship with
Thiokol," "Arrangements Between the Company, Carlyle and Thiokol,"
"Description of Capital Stock" and "Underwriters," in each case insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, accurately summarize the matters referred
to therein in all material respects.
With respect to Section 6(c)(vii) above, Wachtell, Lipton, Xxxxx &
Xxxx and Xxxxx & Xxxx llp may state that their opinion and belief are based
upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, and that such counsel has not verified
and is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as set forth in Section
6(c)(v) above).
(h) The Underwriters shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters,
from Ernst & Young llp, independent auditors, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(i) The Underwriters shall have received on the date hereof a letter
dated the date hereof, in form and substance satisfactory to the
Underwriters, from Price Waterhouse llp, independent accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the Howmet
Predecessor Company Combined Financial Statements.
16
(j) The several obligations of the U.S. Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the U.S. Representatives on
the Option Closing Date of such documents as they may reasonably request
with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares and other matters related to the issuance
of the Additional Shares.
7. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, five signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 7(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supple ment the Prospectus in
order to make the statements therein, in the light of the circum stances
when the Prospectus is delivered to a purchaser, not misleading, or if, for
any other reason, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which Shares
may have been sold by you on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request; provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation in any jurisdiction in which
it was not qualified or to file a general consent to service of process in
any jurisdiction where it has not already filed a general
17
consent to service of process or be obligated to subject itself to any
material additional tax or other liabilities.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the twelve-
month period ending December , 1998 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) In connection with the Directed Share Program, to ensure that the
Directed Shares will be restricted to the extent required by the National
Association of Securities Dealers, Inc. (the "NASD") or the NASD rules from
sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of the effectiveness of the Registration
Statement. Xxxxxx Xxxxxxx will notify the Company as to which Participants
will need to be so restricted. The Company will direct the transfer agent
to place stop transfer restrictions upon such securities for such period of
time.
Furthermore, the Company covenants with Xxxxxx Xxxxxxx that the Company
will comply with all applicable securities and other applicable laws, rules and
regulations in each foreign jurisdiction in which the Directed Shares are
offered in connection with the Directed Share Program.
8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of the
obligations of the Company and the Selling Shareholder under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel,
the Company's accountants and the Selling Shareholder's counsel in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Under writers and dealers, in the quantities hereinabove specified, (ii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in
connection with the offer and sale of the Shares under state securities laws and
all expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 7(d) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky or Legal Investment memorandum (up to a maximum of $5,000), (iii) all
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the
offering of the Shares by the NASD, (iv) all fees and expenses in connection
with the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to listing the
Shares on the New York Stock Exchange, (v) the cost of printing certificates
representing the Shares, (vi) the costs and charges of any transfer agent,
registrar or depositary, (vii) the costs and expenses of the Company relating to
investor presentations on any "road show" undertaken in
18
connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and one-half of the cost of any aircraft chartered in connection
with the road show, (viii) all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp duties,
similar taxes or duties or other taxes, if any, incurred by the Underwriters in
connection with the Directed Share Program, (ix) all costs and expenses related
to the transfer and delivery of the Shares by the Selling Shareholder to the
Underwriters, including any transfer or other taxes payable thereon, and (x) all
other costs and expenses incident to the performance of the obligations of the
Company and the Selling Shareholder hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 9 entitled "Indemnity and Contribution", and
the last paragraph of Section 11 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
9. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by 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 or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by the Company with Section 7(c) hereof.
(b) The Company agrees to indemnify and hold harmless Xxxxxx Xxxxxxx and
each person, if any, who controls Xxxxxx Xxxxxxx within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively, including Xxxxxx Xxxxxxx, the
19
"XXXXXX XXXXXXX ENTITIES"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in the prospectus wrapper material prepared by or
with consent of the Company for distribution in foreign jurisdictions in
connection with the Directed Share Program attached to the Prospectus or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, when considered in conjunction with the Prospectus or any
applicable preliminary prospectus, not misleading; (ii) caused by the failure of
any Participant to pay for and accept delivery of the shares which, immediately
following the effectiveness of the Registration Statement, were subject to a
properly confirmed agreement to purchase; or (iii) related to, arising out of,
or in connection with the Directed Share Program, provided that, the Company
shall not be responsible under this clause (iii) for any losses, claims, damages
or liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of Xxxxxx
Xxxxxxx Entities.
(c) The Selling Shareholder agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, and to indemnify and hold harmless the Company, the directors of the
Company and the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, in each case from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by 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, but only with reference
to information relating to the Selling Shareholder or Carlyle furnished in
writing by or on behalf of the Selling Shareholder expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
(d) The Company agrees to indemnify and hold harmless the Selling
Shareholder and each person, if any, who controls the Selling Shareholder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements
20
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to the Selling
Shareholder or Carlyle furnished to the Company in writing by the Selling
Shareholder expressly for use therein.
(e) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Selling Shareholder, the Company, the directors of the Company
and the officers of the Company who sign the Registration Statement and each
person, if any, who controls the Selling Shareholder or the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company and the
Selling Shareholder to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements thereto.
(f) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Sections 9(a), 9(b), 9(c), 9(d) or 9(e), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx, in the case of parties indemnified
pursuant to Sections 9(a), 9(b) and 9(c), by the Selling Shareholder in the case
of parties indemnified pursuant to Section 9(d), and by the Company, in the case
of parties indemnified pursuant to Section 9(e). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid
21
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding 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 settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. Notwithstanding anything contained herein to the contrary, if
indemnity may be sought pursuant to Section 9(b) hereof in respect of such
action or proceeding, then in addition to such separate firm for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate firm (in addition to any local counsel)
for Xxxxxx Xxxxxxx and all persons, if any, who control Xxxxxx Xxxxxxx within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
for the defense of any losses, claims, damages and liabilities arising out of
the Directed Share Program.
(g) To the extent the indemnification provided for in Sections 9(a), 9(b),
9(c), 9(d) or 9(e) is unavailable to an indemnified party (other than by the
express provisions thereof) or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand from the offering of the Shares or (ii) if the allocation provided by
Section 9(g)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in Section
9(g)(i) above but also the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that 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 Selling
Shareholder on the one hand and the Underwriters on the other hand in connection
with the offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Selling Shareholder and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the
Selling Shareholder and the Company on the one hand and the Underwriters 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 Selling
Shareholder, the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(h) The Selling Shareholder, the Company and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata
22
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 9(g). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(i) The indemnity and contribution provisions contained in this Section 9
and the representations, warranties and other statements of the Company and the
Selling Shareholder contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Selling Shareholder or any person controlling
the Selling Shareholder, the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Shares.
(j) No partner of the Selling Shareholder or any successor general partner
of the Selling Shareholder shall have personal liability for the performance of
the Selling Shareholder's obligations hereunder, and any liability or obligation
of the Selling Shareholder arising hereunder shall be limited to and satisfied
out of the property of the Selling Shareholder.
10. Termination. This Agreement shall be subject to termination by notice
given by you to the Company and the Selling Shareholder, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses 10(a)(i)
through 10(a)(iv), such event, singly or together with any other such event,
makes it, in your judgment, impracticable to market the Shares on the terms and
in the manner contemplated in the Prospectus.
23
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I or Schedule II bears to the
aggregate number of Firm Shares set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 11 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares
with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares to be purchased, and arrangements satisfactory
to you, the Company and the Selling Shareholder for the purchase of such Firm
Shares are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Shareholder. In any such case either you or the Selling
Shareholder shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Selling Shareholder or the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Selling Shareholder or the Company shall be
unable to perform its obligations under this Agreement, the Selling Shareholder
or the Company, as the case may be, will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
24
12. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Successors and Assigns. This Agreement, shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and the Selling
Shareholder and, to the extent provided for in Section 9, (i) the directors of
the Company and the officers of the Company who signed the Registration
Statement, (ii) each person, if any, controlling the Company, the Selling
Shareholder or any Underwriter and (iii) the Xxxxxx Xxxxxxx Entities.
14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
25
Very truly yours,
HOWMET INTERNATIONAL INC.
By:
----------------------------------------
Name:
Title:
CARLYLE-BLADE ACQUISITION PARTNERS, L.P.
By: Carlyle Partners II, L.P.,
General Partner
By: TC Group, L.L.C.,
General Partner
By:
----------------------------------------
Xxxxx X. Xxxx,
Managing Member
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXX BROTHERS INC.
Acting severally on behalf of themselves
and the several U.S. Underwriters named
in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
----------------------------------------
Name:
Title:
26
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXX BROTHERS INTERNATIONAL (EUROPE)
Acting severally on behalf of themselves and
the several International Underwriters named
in Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. International Limited
By:
----------------------------------------
Name:
Title:
27
SCHEDULE I
U.S. UNDERWRITERS
NUMBER OF
FIRM
SHARES TO BE
UNDERWRITER PURCHASED
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
[NAMES OF OTHER U.S. UNDERWRITERS]
----------
Total U.S. Firm Shares......... 12,000,000
==========
28
SCHEDULE II
INTERNATIONAL UNDERWRITERS
NUMBER OF
FIRM
SHARES TO BE
UNDERWRITER PURCHASED
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Brothers International (Europe)
[NAMES OF OTHER INTERNATIONAL CO-MANAGERS]
---------
Total International Shares............. 3,000,000
=========
29
EXHIBIT A
__________, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxx Brothers Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International Limited
Xxxxxx Brothers International (Europe)
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs and Mesdames:
The undersigned, a stockholder of Howmet International Inc., a Delaware
corporation (the "COMPANY"), understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX"), Xxxxxx Brothers Inc., Xxxxxx Xxxxxxx & Co. International
Limited and Xxxxxx Brothers International (Europe) propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with the Company and
Carlyle-Blade Acquisition Partners, L.P., a Delaware limited partnership (the
"SELLING SHAREHOLDER"), providing for the public offering (the "PUBLIC
OFFERING") by the several Underwriters, including Xxxxxx Stanley, Lehman
Brothers Inc., Xxxxxx Xxxxxxx & Co. International Limited and Xxxxxx Brothers
International (Europe) (the "UNDERWRITERS"), of shares (the "SHARES") of the
common stock, par value $0.01 per share (the "COMMON STOCK"), of the Company.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees that, without the prior written
consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, the undersigned will
not, and it will cause its subsidiaries (other than the Company) not to, during
the period commencing on the date hereof and ending 180 days after the date of
the Prospectus (as defined in the Underwriting Agreement), (a) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase, lend
or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock or (b) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (a) or (b) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the execution and delivery of the Amended and
Restated Shareholders Agreement among the Company, the Selling Shareholder, the
undersigned and Thiokol Holding Company, a Delaware corporation ("Holding"), and
the consummation of the transactions contemplated by the IPO Agreement among the
Company, the Selling Shareholder, the undersigned and Holding or (B)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering. In
addition, the undersigned agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, and it will cause its
subsidiaries (other than the Company) not to, during the period commencing on
the date hereof and ending 180 days after the date of the Prospectus, make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
Whether or not the Public Offering is consummated depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company, the Selling Shareholder and the Underwriters.
This Agreement shall terminate on the tenth business day after the date of the
Underwriting Agreement if the Closing Date (as defined in the Underwriting
Agreement) shall not have occurred on or prior to such day.
Very truly yours,
THIOKOL CORPORATION
By:
---------------------------------------
Name:
Title:
A-2
