TRW AUTOMOTIVE HOLDINGS CORP.
COMMON STOCK
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UNDERWRITING AGREEMENT
[ ], 2004
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As representatives (the "Representatives") of
the several Underwriters named in Schedule I hereto,
Ladies and Gentlemen:
TRW Automotive Holdings Corp., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of [ ] shares and, at the election of the Underwriters, up to [ ] additional
shares of Common Stock, par value $0.01 per share ("Stock") of the Company. The
aggregate of [ ] shares to be sold by the Company is herein called the "Firm
Shares" and the aggregate of [ ] additional shares to be sold by the Company is
herein called the "Optional Shares". The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Shares".
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-110513)
(the "Initial Registration Statement") in respect of the Shares has been
filed with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the Commission
(any preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration
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Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared effective,
each as amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter collectively
called the "Registration Statement"; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the "Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through you expressly for use therein;
(iv) Since the date of the most recent audited financial
statements of the former TRW Automotive Inc., the Company's predecessor
(the "Former TRW Automotive") included in the Prospectus, which financial
statements represent the combined financial statements of the automotive
business of TRW Inc. (now known as Northrop Grumman Space & Mission Systems
Corp.) now owned and operated by the Company through its operating
subsidiaries, except as otherwise stated in the Prospectus, (i) there has
not been any material adverse change or, to the knowledge of the Company,
any development involving a prospective material adverse change, in or
affecting the business, properties, management, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, (ii) none of the Company or any of its subsidiaries has incurred any
material liability or obligation, direct or contingent, other than in the
ordinary course of business, (iii) none of the
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Company or any of its subsidiaries has entered into any material
transaction or agreement other than in the ordinary course of business and
(iv) there has not been any change in the capital stock of the Company or
any of its significant subsidiaries (as such term is defined in Rule
1-02(w) of Regulation S-X, as promulgated by the Commission) (each, a
"Significant Subsidiary") or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class
of its capital stock except as set forth on Schedule III hereto (solely
with respect to Significant Subsidiaries);
(v) The Company and each of its subsidiaries have good and valid
title in fee simple to, or have valid rights to lease or otherwise use, all
items of real and personal property that are material to the respective
businesses of the Company and its subsidiaries, in each case free and clear
of all liens, encumbrances, claims and defects and imperfections of title
except those that (i) do not materially interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries,
(ii) are contemplated by the Credit Agreement dated as of February 27,
2003, as amended through January 9, 2004, among the Company, TRW Automotive
Intermediate Holdings Corp., TRW Automotive Inc., certain subsidiaries of
the Company, the financial institutions named therein and JPMorgan Chase
Bank as Administrative Agent and Collateral Agent (the "Credit Agreement")
or by the receivables facility (as such term is used in the Prospectus) or
(iii) could not reasonably be expected, individually or in the aggregate,
to have a material adverse effect on the business, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole
(a "Material Adverse Effect");
(vi) The Company and each of its Significant Subsidiaries have
been duly organized and are validly existing and in good standing under the
laws of their respective jurisdictions of organization, are duly qualified
to do business and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all corporate
power and authority necessary to own their respective properties and to
conduct the businesses in which they are engaged as described in the
Prospectus, except where the failure to be so qualified or have such power
or authority would not, individually or in the aggregate, have a Material
Adverse Effect;
(vii) The Company has the authorized capitalization as set forth
in the Prospectus under the heading "Description of Capital Stock". All the
issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable
and conform to the description of the Stock contained in the Prospectus.
All of the outstanding shares of capital stock of each Significant
Subsidiary of the Company have been duly authorized and validly issued, are
fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security
interest, restriction upon voting or transfer or any other claim of any
third party, other than those contained in the Credit Agreement;
(viii) The Company has the corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder; and all corporate action required to be taken for the due and
proper authorization, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly taken by the Company;
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(ix) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company except as enforceability may be limited by (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered in
a proceeding in equity or at law) and (iii) an implied covenant of good
faith and fair dealing;
(x) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Prospectus;
(xi) The issue and sale of the Shares to be sold by the Company
and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or by
which the Company or any of its Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, except for such conflicts, breaches,
violations or defaults, liens, charges or encumbrances that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (ii) result in any violation of any law or statute or any
judgment, order, decree, rule or regulation of any court or arbitrator or
governmental or regulatory authority or body having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their respective
properties or assets, except for such violations that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, or (iii) result in any violation of the provisions of the
charter or by laws (or similar organizational documents) of the Company or
any of its Significant Subsidiaries; and no consent, approval,
authorization or order of, or filing, qualification or registration with,
any such court or arbitrator or governmental or regulatory authority or
body under any such statute, judgment, order, decree, rule or regulation is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act") of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters or to list the Shares on the
New York Stock Exchange (the "Exchange");
(xii) Neither the Company nor any of its Significant Subsidiaries
is (i) in violation of its charter or by laws (or similar organizational
documents), (ii) in default in any respect or is alleged by any other party
to be in default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the property or assets of the
Company or any of its Significant Subsidiaries is subject or (iii) in
violation in any respect of any law or statute or any judgment, order,
decree, rule or regulation of any court or arbitrator or governmental or
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regulatory authority or body to which it or its property or assets may be
subject, other than, in the case of clauses (ii) or (iii), such defaults or
violations that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(xiii) The statements set forth in the Prospectus under the
caption "Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Stock, under the caption "Material
United States Tax Consequences", and under the caption "Certain
Relationships and Related Transactions", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
in all material respects accurate, complete and fair;
(xiv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject (a) as to which an adverse determination
is reasonably probable and (b) which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; and, to the
knowledge of the Company, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xv) Ernst & Young LLP, who have audited certain financial
statements of the Former TRW Automotive and its subsidiaries, are
independent auditors within the meaning of the Act and the applicable rules
and regulations thereunder adopted by the Commission and, at all times
relevant to the preparation of the historical financial statements referred
to below, Ernst & Young LLP were such independent certified public
accountants. The historical financial statements (including the related
notes) of the Former TRW Automotive and the Company contained in the
Registration Statement comply in all material respects with the
requirements applicable to a registration statement on Form S-1 under the
Act, except as noted in the Prospectus; such financial statements have been
prepared in accordance with accounting principles generally accepted in the
United States consistently applied throughout the periods covered thereby
(except that the financial statements of the Former TRW Automotive and the
Company have been prepared on different bases as a result of the
application of purchase accounting) and fairly present, in all material
respects, the financial position of the entities purported to be covered
thereby at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated,
subject in the case of unaudited combined and consolidated interim
financial statements, to year-end closing adjustments; and the historical
financial information of the Former TRW Automotive and the Company
contained in the Prospectus under the headings "Summary", "--Summary
Historical and Pro Forma Financial Data", "Selected Historical Combined and
Consolidated Financial Data", and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" are derived from the
accounting records of the Former TRW Automotive and the Company, as
applicable, and its subsidiaries and affiliates and fairly present, in all
material respects, the information purported to be shown thereby. The pro
forma financial information (including the related notes) contained in the
Prospectus (including, without limitation, under the headings "Summary",
"--Summary Historical and Pro Forma Financial Data" and "Unaudited Pro
Forma Combined and Consolidated Financial Information") has been prepared
on a basis consistent with the historical financial statements contained in
the Prospectus (except for the pro forma adjustments specified therein),
comply as to form in all material respects with the applicable requirements
of Rule 11-02 of
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Regulation S-X under the Act, and the assumptions underlying such pro forma
financial information are reasonable and are set forth in the Prospectus.
The other historical financial information and data included in the
Prospectus are, in all material respects, fairly presented;
(xvi) To the knowledge of the Company, no action has been taken
and no statute, rule, regulation or order has been enacted, adopted or
issued by any governmental agency or body (other than "Blue Sky" laws,
regulations or orders) that prevents the issuance of the Shares by the
Company or suspends the sale of the Shares in any jurisdiction; no
injunction, restraining order or order of any nature by any federal or
state court of competent jurisdiction has been issued with respect to the
Company that would prevent or suspend the issuance or sale by the Company
of the Shares or the use of the Prospectus in any jurisdiction; no action,
suit or proceeding is pending against or, to the knowledge of the Company,
threatened against or affecting the Company before any court or arbitrator
or any governmental agency, body or official, domestic or foreign, that
could reasonably be expected to restrain, enjoin, interfere with or
adversely affect the transactions contemplated by this Agreement in any
material respect;
(xvii) The Company and each of its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state, local or foreign governmental or regulatory
authorities or bodies that are necessary for the conduct of their
respective businesses as described in the Prospectus, except where the
failure to possess the same could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and neither the
Company nor any of its subsidiaries has received notification of any
revocation or modification of any such license, certificate, permit or
other authorization or has any reason to believe that any such license,
certificate, permit or other authorization will not be renewed in the
ordinary course, except where the failure to possess the same could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(xviii)The Company and each of its subsidiaries have filed all
federal, state, local and foreign income and franchise tax returns required
to be filed through the date hereof or have timely filed requests for
extensions and such extensions have been granted and have not expired and
have paid all taxes due thereon (or have made adequate provision for such
taxes on their respective balance sheets), except for taxes being contested
in good faith for which adequate reserves have been provided and any such
taxes the failure of which to pay or so file could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect,
and no tax deficiency has been determined adversely to the Company or any
of its subsidiaries that, individually or in the aggregate, has had (nor
does the Company or any of its subsidiaries have any knowledge of any tax
deficiency that, individually or in the aggregate, if determined adversely
to the Company or any of its subsidiaries, could reasonably be expected to
have) a Material Adverse Effect;
(xix) The Company is not, and after giving effect to the offering
and sale of the Shares as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or company "controlled" by an "investment company"
within the meaning of and subject to regulation under the Investment
Company Act of 1940, as amended (the "Investment Company Act");
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(xx) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable (but not
absolute) assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability, (iii) transfer or withdrawal of assets is permitted
only in accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences; and the Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 under the Exchange Act)
that are effective in ensuring that information required to be disclosed by
the Company in the reports that it files or submits under the Exchange Act
is recorded, processed, summarized and reported, within the time periods
specified in the rules and forms of the Commission, including, without
limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is accumulated and communicated to the
Company's management, including its principal executive officer or officers
and its principal financial officer or officers, as appropriate to allow
timely decisions regarding required disclosure;
(xxi) The Company and its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses, which
insurance is in amounts and insures against such losses and risks as is
customary for similar businesses or is required by law;
(xxii) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the knowledge of the Company, is
contemplated or threatened that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect;
(xxiii)No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to
time (the "Code")) or "accumulated funding deficiency" (as defined in
Section 302 of ERISA) or any of the events set forth in Section 4043(b) of
ERISA (other than events with respect to which the 30 day notice
requirement under Section 4043 of ERISA has been waived) has occurred with
respect to any employee benefit plan of the Company or any of its
subsidiaries which could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; each such employee benefit
plan has been maintained in compliance with its terms and the requirements
of applicable law, including ERISA and the Code, except where any
noncompliance, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect; the Company and its Significant
Subsidiaries have not incurred and do not expect to incur liability under
Title IV of ERISA with respect to the termination of, or withdrawal from,
any pension plan which could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect;
(xxiv) Except as described in the Prospectus and except as could
not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, legally binding policy or
rule of common law or any judicial or legally binding administrative
interpretation thereof, including any judicial or legally
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binding administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws (except for such permits, authorizations and approvals
the failure of which to possess could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect)
and are each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) to the knowledge of the Company, there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws;
(xxv) Except as described in the Prospectus, there are no
outstanding subscriptions, rights, warrants, calls or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity or other ownership interest in the
Company;
(xxvi) Other than this Agreement, neither the Company nor any of
its subsidiaries is a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the Company
or any of its subsidiaries or any Underwriter for a brokerage commission,
finder's fee or like payment in connection with the offering and sale of
the Shares;
(xxvii)No forward-looking statement (within the meaning of
Section 27A of the Act and Section 21E of the Exchange Act contained in the
Registration Statement, the Preliminary Prospectus or the Prospectus has
been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith;
(xxviii) Neither the Company nor any of its affiliates has taken
or will take, directly or indirectly, any action designed to, or that could
reasonably be expected to, cause or result in any stabilization or
manipulation of the price of the Shares; provided that, the Company may
acquire Stock in open market transactions for purposes of matching
contributions under its 401K plan to the extent that all such open market
transactions comply with the provisions of Regulation M, as promulgated by
the Commission;
(xxix) The Company and its subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service xxxx registrations,
copyrights, licenses and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective
businesses, except where the failure
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to own or possess such rights could not reasonably be expected to have a
Material Adverse Effect; and, to the knowledge of the Company, the conduct
of their respective businesses does not conflict with any such rights of
others, except for any such conflicts as could not reasonably be expected
to have a Material Adverse Effect, and the Company and its subsidiaries
have not received any written notice of any claim of infringement of or
conflict with any such rights of others (a) as to which an adverse
determination is reasonably probable and (b) which could reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect;
(xxx) The Employee Stockholders Agreement (the "Employee
Stockholders Agreement") dated as of February 28, 2003 by and among the
Company, Automotive Investors L.L.C., Richmond U.K. Inc., a Delaware
corporation, and the employee stockholders party thereto (the "Employee
Stockholders") is enforceable against the Employee Stockholders in
accordance with its terms, except as enforceability may be limited by (i)
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied
covenant of good faith and fair dealing and the Employee Stockholders
Agreement has not been amended, supplemented or otherwise modified from the
form filed as Exhibit 10.18 to the registration statement on Form S-4, file
No. 333-106702 of TRW Automotive Inc., a Delaware corporation and a
wholly-owned indirect subsidiary of the Company ("TRW Automotive Inc.") and
no waiver thereof or release of the limitations on transfer of Stock
contained in Section 2 thereof has been granted to any party thereto; and
(xxxi) The Amended and Restated Stockholders Agreement (the
"Stockholders Agreement") dated January 26, 2004, as the same may be
amended from time to time, by and among the Company, Automotive Investors
L.L.C., a Delaware limited liability company ("Automotive Investors") and
Northrop Grumman Corporation, a Delaware corporation (together with any
Permitted Transferee (as defined in the Stockholders Agreement) thereof
that becomes a party to the Stockholders Agreement pursuant to Section 2.3
thereof, "Northrop Grumman") is enforceable against Northrop Grumman in
accordance with its terms, except as enforceability may be limited by (i)
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied
covenant of good faith and fair dealing and the Stockholders Agreement has
not been amended, supplemented or otherwise modified from the form filed as
Exhibit 10.16 to the Registration Statement, and no waiver thereof or
release therefrom, with respect to the limitations on transfer of Stock
contained therein, has been granted to Northrop Grumman;
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at a purchase
price per share of $[ ], the number of Firm Shares set forth opposite their
respective names in Schedule I hereto and (b) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees severally and not jointly, to purchase from the
Company, at the purchase price per share set forth in clause (a) of this Section
2, that portion of the number of Optional Shares as to which such election shall
have
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been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction the
numerator of which is the maximum number of Optional Shares which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to [ ] Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering sales of shares
in excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares,
the several Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as you may request upon at least forty-eight hours' prior notice to the
Company shall be delivered by or on behalf of the Company to you for the account
of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to you at least forty-eight hours in advance.
The Company will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office to be
designated by you (the "Designated Office"). The time and date of such delivery
and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York time,
on [ ], 2004 or such other time and date as you and the Company may agree upon
in writing, and, with respect to the Optional Shares, 9:30 a.m., New York time,
on the date specified by you in the written notice given by you of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as you and the Company may agree upon in writing. Such time and date for
delivery of the Firm Shares is herein called the "First Time of Delivery", such
time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such time and
date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(m) hereof, will be delivered at the offices
of Cravath, Swaine & Xxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
(the "Closing Location"), and the Shares will be delivered at the Designated
Office, all at such Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each
10
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act within the
period specified by Rule 424(b) under the Act; to make no further
amendment or any supplement to the Registration Statement or
Prospectus to which you reasonably object promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you
with copies thereof; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus
or Prospectus, of the suspension of the qualification of the Shares
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, promptly to use its
best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic
copies of the Prospectus in New York City in such quantities as you
may reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or
sale of the Shares and if at such time any events shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon
your request to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and electronic copies
as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the
time of issue of the Prospectus, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as
many written and
11
electronic copies as you may reasonably request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable an earnings statement of the Company and its subsidiaries
(which need not be audited) covering the twelve-month period ending [
], 2005 that satisfies the provisions of Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including, at
the option of the Company, Rule 158);
(e) During the period beginning from the date of the Prospectus
and continuing to and including the date that is 180 days after the
date of the Prospectus, (A) not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of
the Company that are substantially similar to the Shares, including
but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any
such substantially similar securities, without your prior written
consent and (B) not to amend, supplement or otherwise modify the
Employee Stockholders Agreement and the Stockholders Agreement, or
grant any waiver of its rights thereunder or release therefrom,
[solely with respect to the provisions relating to limitations on
transfer of Stock contained therein,] without your prior written
consent. The foregoing restriction shall not apply to (i) the Shares
to be sold by the Company hereunder, (ii) the issuance by the Company
of shares of Stock upon the exercise of an option or warrant or upon
the conversion or exchange of convertible or exchangeable securities
in each case outstanding on the date of the Prospectus, (iii) the
issuance of Stock or grant of an option to purchase Stock under the
Company's stock plans described in the Prospectus, (iv) the issuance
of shares of Stock in connection with the acquisition of another
company, provided that the aggregate market value of such securities
may not exceed 5% of the market capitalization of the Company as of
the date hereof and the recipients of such shares of Stock agree to be
bound by the restrictions contained in this paragraph for 180 days
after the date of the Prospectus or (v) the filing of a registration
statement in respect of the Stock within 180 days from the date of the
Prospectus, provided that the Company obtains the prior written
consent of the Representatives (other than a registration statement on
Form S-8 with respect to the Company's 401K plan or stock incentive
plan);
(f) To withhold transfer instructions upon receipt of
notification from the Company's transfer agent and registrar of the
transfer of the shares of Stock held by the Employee Stockholders and
Northrop Grumman until the date that is 180 days after the date
hereof;
(g) To furnish to its stockholders as soon as practicable after
the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), to make available to its stockholders consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
(h) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
12
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed;
(i) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
(j) To use its best efforts to list, subject to notice of
issuance, the Shares on the Exchange;
(k) To file with the Commission such information on Form 10-Q or
Form 10-K as may be required by Rule 463 under the Act;
(l) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act; and
(m) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
name and corporate logo for use on the website, if any, operated by
such Underwriter for the purpose of facilitating the on-line offering
of the Shares (the "License"); provided, however, that the License
shall be used solely for the purpose described above, is granted
without any fee and may not be assigned or transferred; and provided,
further, that the License shall expire on the date that is nine months
after the date hereof.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
the Blue Sky Memorandum and any other documents prepared in connection with the
offering, purchase, sale and delivery of the Shares under state securities laws
and all expenses in connection with the qualification of the Shares for offering
and sale under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
Memorandum; (iii) all fees and expenses in connection with listing the Shares on
the Exchange; (iv) the filing fees incident to, and the fees and disbursements
of counsel for the Underwriters in connection with, securing any required review
by the National Association of Securities Dealers, Inc. of the terms of the sale
of the Shares; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar and (vii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, stock transfer taxes on resale of any of the Shares by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations
13
and warranties and other statements of the Company herein are, at and as of such
Time of Delivery, true and correct, the condition that the Company shall have
performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; if the Company has elected to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the
date of this Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters,
shall have furnished to you their written opinion (in the form
attached as Annex II(a) hereto), dated such Time of Delivery and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company,
shall have furnished to you their written opinion (in the form
attached as Annex II(b) hereto), dated such Time of Delivery;
(d) Xxxxx X. Xxxxxxxx, Esq., Vice President and General Counsel
of the Company, shall have furnished to you his written opinion (in
the form attached as Annex II(c) hereto), dated such Time of Delivery;
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Ernst & Young LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto;
(f) Subsequent to the execution and delivery of this Agreement,
no event or condition of a type described in Section 1(a)(iv) shall
have occurred or shall exist, which event or condition is not
described in the Prospectus, the effect of which in the judgment of
the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares being delivered
at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as such term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading
in securities generally on the Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Exchange;
(iii) a
14
general moratorium on commercial banking activities declared by either
Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in
the United States; (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war or (v) the occurrence of any other
calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iv) or (v) in the judgment of the
Representatives is so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(i) The Shares at such Time of Delivery shall have been duly
listed, subject to notice of issuance, on the Exchange;
(j) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement from Automotive
Investors, substantially in the form attached as Annex III hereto;
(k) The Company shall have obtained and delivered to the
Underwriters executed copies of an agreement from each person listed
on Schedule II, substantially in the form attached as Annex IV hereto;
(l) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(m) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of the chief financial
officer of the Company as to the accuracy of the representations and
warranties of the Company herein at and as of such Time of Delivery,
as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, and
the Company shall have furnished or caused to be furnished
certificates of the chief financial officer of the Company as to the
matters set forth in subsections (a) and (f) of this Section.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by you expressly
for use therein and; provided, further, that the foregoing indemnity agreement
with respect to any untrue statement in or omission from any Preliminary
Prospectus shall not inure to the
15
benefit of any Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased Shares, or any person controlling such
Underwriter, if (x) it shall be established that a copy of the Prospectus (as
then amended or supplemented) was not delivered 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
(y) the Company has sustained the burden of proof that the untrue statement in
or omission from the Preliminary Prospectus was corrected in the Prospectus (as
so amended or supplemented), unless such failure to deliver the Prospectus was a
result of non-compliance by the Company with the provisions of Section 5 hereof.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; provided that, the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to any indemnified party under subsection (a) or (b) above except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (which counsel may at the option of the indemnifying party be counsel to
the indemnifying party unless (1) the indemnified party has reasonably concluded
(based upon advice of counsel to the indemnified party) that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party or (2) a conflict or
potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
out-of-pocket costs of investigation. If the indemnifying party does not assume
the defense of such
16
action, it is understood that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to one separate firm of local attorneys in each
such jurisdiction when reasonably necessary but not to include two firms in the
same jurisdiction) at any time for all such indemnified parties. The
indemnifying party shall not be liable for any settlement of an action or claim
for monetary damages effected without its consent, which consent shall not be
unreasonably withheld, but if settled with such consent or if there is a final
judgment for the plaintiff, the indemnifying party shall indemnify each
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, 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 on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such
17
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties
reasonably satisfactory to the Company to purchase such Shares on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Shares, or the Company notifies you that it has so arranged for the
purchase of such Shares, you or the Company shall have the right to postpone a
Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the
18
aggregate number of such Shares which remains unpurchased exceeds one-eleventh
of the aggregate number of all of the Shares to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Shares of a
defaulting Underwriter or Underwriters, then this Agreement (or, with respect to
the Second Time of Delivery, the obligations of the Underwriters to purchase and
of the Company to sell the Optional Shares) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not be under any liability to any Underwriter except
as provided in Sections 6 and 8 hereof; but, if for any other reason any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter in respect of the Shares not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to (i) Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Registration Department; (ii) Credit Suisse First
Boston LLC, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Transactions Advisory Group and (iii) X.X. Xxxxxx Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Desk, as the
representatives, and if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Xxxxx X. Xxxxxxxx, Esq.; provided, however,
that any notice to an Underwriter pursuant to Section 8(d) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire or telex
constituting such Questionnaire, which address will be supplied to the Company
by you on request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
19
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriters imposing any
limitation of any kind.
If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination, upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
TRW Automotive Holdings Corp.
By:
--------------------------
Name:
Title:
20
Accepted as of the date hereof
Xxxxxxx, Sachs & Co.
By:
--------------------------
Name:
Title:
Credit Suisse First Boston LLC
By:
--------------------------
Name:
Title:
X.X. Xxxxxx Securities Inc.
By:
--------------------------
Name:
Title:
On behalf of each of the Underwriters listed on Schedule I
21
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ------------------
Xxxxxxx, Sachs & Co.................................................
Credit Suisse First Boston LLC......................................
X.X. Xxxxxx Securities Inc..........................................
Xxxxxx Xxxxxxx & Co. Incorporated...................................
Banc of America Securities LLC......................................
Deutsche Bank Securities Inc........................................
Lazard Freres & Co. LLC.............................................
Xxxxxx Brothers Inc.................................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated.....................................
-------------- -------------
Total...............................................................
============== =============
SCHEDULE II
Name Position
---- --------
Xxxx X. Plant President, Chief Executive Officer and Director
Xxxxxx Xxxx Executive Vice President and Chief Operating Officer
Xxxxx X. Xxxxxxxx Vice President and General Counsel
Xxxxxx X. Xxxxxx Vice President and Chief Financial Officer
Xxxxx X. Lake Vice President, Sales and Business Development
Xxxxxx X. Xxxxxxxx Director
Xxxx X. Xxxxxxxx Chairman of the Board of Directors and Director
Xxxxxx X. Xxxxxx Director
Xxxx X. Xxxxxxx Director
J. Xxxxxxx Xxxx Director
Xxxxxxx X. X'Xxxxx Director
Xxxx X. X'Xxxxx Director
SCHEDULE III
Significant Subsidiaries
ANNEX II(a)
Pursuant to Section 7(e) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the unaudited consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports
thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as indicated in their reports thereon
copies of which have been separately furnished to the Representatives
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations, nothing came to their attention that caused them to
believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements
where applicable) in the audited consolidated financial statements for
such five fiscal years which were included or incorporated by
reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial
F-1
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company and
its subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of
the Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated balance
sheets and consolidated statements of cash flows included in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
in the Prospectus;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived any
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with the
basis for the audited consolidated financial statements included
in the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest financial statements included in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in
consolidated net current assets or stockholders' equity or other
items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared
with amounts shown in the latest balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
F-2
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date
referred to in clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified
by the Representatives, or any increases in any items specified
by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except
in each case for decreases or increases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus, or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
F-3
ANNEX II(a)
Form of Opinion of Cravath, Swaine & Xxxxx LLP
F-1
ANNEX II(b)
[Letterhead of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP]
February , 2004
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
and the other several
Underwriters named in Schedule 1
to the Underwriting Agreement
referred to below
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel to TRW Automotive Holdings Corp., a Delaware
corporation (the "Company"), in connection with the purchase by you of an
aggregate of [_______] shares and, at the election of the Underwriters, up to
[_______] additional shares of Common Stock, par value $.01 per share (the
"Shares"), of the Company from the Company pursuant to the Underwriting
Agreement dated February [2], 2004 between you and the Company (the
"Underwriting Agreement").
We have examined the Registration Statement on Form S-1 (File No.
333-110513) filed by the Company under the Securities Act of 1933, as amended
(the "Securities Act"), as it became effective under the Securities Act (the
"Registration Statement"); the Company's prospectus dated February [2], 2004
(the "Prospectus"), filed by the Company pursuant to Rule 424(b) of the rules
and regulations of the Securities and Exchange Commission (the "Commission")
under the Securities Act; and the Underwriting Agreement. We also have examined
a specimen certificate representing the Shares of the Company. In addition, we
have examined, and have relied as to matters of fact upon, the documents
delivered to you at the closing and upon originals, or duplicates or certified
or conformed copies, of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents or oral statements of
public officials and of officers and representatives of the Company, and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions hereinafter set forth. Our opinion that the
Registration Statement has become effective under the Securities Act is based on
oral advice from the staff of the Commission to that effect.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies and the authenticity of the originals of such latter
documents.
Based upon the foregoing, and subject to the qualifications,
assumptions and limitations stated herein, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing
and in good standing as a corporation under the law of the State of
Delaware and has full corporate power and authority to conduct its
business as described in the Registration Statement and Prospectus.
2. Each of the Company's significant subsidiaries (as such term
is defined in Rule 1-02 (w) of Regulation S-X, as promulgated by the
Commission) incorporated in the State of Delaware (which are listed in
Annex I hereto) is validly existing and in good standing as a
corporation under the laws of the state of Delaware.
3. All outstanding shares of the Company's Common Stock,
including the Shares, have been duly authorized, and all outstanding
shares of the Company's Common Stock have been and, upon payment and
delivery in accordance with the Underwriting Agreement, the Shares
will be, validly issued, fully paid and nonassessable. The Shares have
been duly authorized for listing, subject to official notice of
issuance, on the New York Stock Exchange.
4. The statements made in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to constitute
summaries of the terms of the capital stock (including the Shares),
constitute accurate summaries of the terms of such capital stock in
all material respects.
5. The statements made in the Prospectus under the caption
"Material U.S. Tax Consequences," insofar as they purport to
constitute summaries of matters of United States federal tax law and
regulations or legal conclusions with respect thereto, constitute
accurate summaries of the matters described therein in all material
respects.
6. To our knowledge, there are no pending or threatened legal or
governmental proceedings required to be described in the Prospectus
which are not described as required.
7. The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
8. The issue and sale of the Shares by the Company and the
execution, delivery and performance by the Company of the Underwriting
Agreement will not breach or result in a default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument filed or incorporated by reference as an exhibit to the
Registration Statement nor, will such action violate the Certificate
of Incorporation or By-laws of the Company or any federal or New York
statute or the Delaware General Corporation Law or any rule or
regulation that has been issued pursuant to any federal or New York
statute or the Delaware General Corporation Law or any order known to
us issued pursuant to any federal or New York statute or the Delaware
General Corporation Law by any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties.
9. No consent, approval, authorization, order, registration or
qualification of or with any federal or New York governmental agency
or body or any Delaware governmental agency or body acting pursuant to
the Delaware General Corporation Law or, to our knowledge, any federal
or New York court or any Delaware court acting pursuant to the
Delaware General Corporation Law is required for the issue and sale of
the Shares by the Company and the compliance by the Company with all
of the provisions of the Underwriting Agreement, except for the
registration under the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act") of the Shares, and such
consents, approvals, authorizations, registrations or qualifications
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
10. The Registration Statement has become effective under the
Securities Act and the Prospectus was filed on February [2], 2004
pursuant to Rule 424(b) of the rules and regulations of the Commission
under the Securities Act and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued or proceeding for that purpose has been instituted or
threatened by the Commission.
11. There are no preemptive rights under federal or New York law
or under the Delaware General Corporation Law to subscribe for or
purchase shares of the Common Stock. There are no preemptive or other
rights to subscribe for or purchase, nor any restriction upon the
voting or transfer of, any shares of the Common Stock pursuant to the
Company's Certificate of Incorporation or By-laws or any agreement or
other instrument filed or incorporated by reference as an exhibit to
the Registration Statement.
12. The Company is not an "investment company" within the meaning
of, nor is it subject to regulation under, the Investment Company Act
of 1940, as amended.
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the law of the State of
New York, the federal law of the United States and the Delaware General
Corporation Law.
This opinion letter is rendered to you in connection with the
above-described transaction. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by, or furnished to, any other person,
firm or corporation without our prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX LLP
DELAWARE SIGNIFICANT SUBSIDIARIES
TRW Automotive Inc.
TRW Automotive Intermediate Holdings Corp.
Xxxxxx-Xxxxx Company
Xxxxx Varity Automotive Holding Company
TRW Automotive U.S. LLC
TRW Safety Systems Inc.
[Letterhead of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP]
February [ ], 2004
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
and the other several
Underwriters named in Schedule 1
to the Underwriting Agreement
referred to below
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel to TRW Automotive Holdings Corp., a Delaware
corporation (the "Company"), in connection with the purchase by you of an
aggregate of [_______] shares and, at the election of the Underwriters, up to
[______] additional shares of Common Stock, par value $.01 per share (the
"Shares"), of the Company, pursuant to the Underwriting Agreement dated February
[2], 2004 between the Company and you (the "Underwriting Agreement").
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement on
Form S-1 (File No. 333-110513) filed by the Company under the Securities Act of
1933, as amended (the "Securities Act"), as it became effective under the
Securities Act (the "Registration Statement"), or the Company's prospectus dated
February [2], 2004 (the "Prospectus"), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Securities Act, and we take no responsibility
therefor, except as and to the extent set forth in numbered paragraphs 4 and 5
of our opinion letter to you dated the date hereof.
In connection with, and under the circumstances applicable to the
offering of the Shares, we participated in conferences with certain officers and
employees of the Company and the Underwriters, with representatives of Ernst &
Young LLP and with counsel to the Company in the course of the preparation by
the Company of the Registration Statement and the Prospectus and also reviewed
certain records and documents furnished to us by the Company. Based upon our
review of the Registration Statement and the Prospectus, our reviews made in
connection with the preparation of the Registration Statement and the
Prospectus, our
participation in the conferences referred to above, our review of the records
and documents as described above and our understanding of the U.S. federal
securities laws and the experience we have gained in our practice thereunder:
(i) each of the Registration Statement, as of its effective date, and the
Prospectus, as of its date, was, on its face, appropriately
responsive, in all material respects, to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no belief
with respect to the financial statements or other financial data
contained in or omitted from the Registration Statement or the
Prospectus; and
(ii) nothing has come to our attention that causes us to believe that the
Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus, as of its
date and as of the date hereof, contained or contains any untrue
statement of a material fact or omitted or omits to state any material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that in each case we express no belief with respect to the
financial statements or other financial data contained in or omitted
from the Registration Statement or the Prospectus.
This letter is delivered to you in connection with the above-described
transaction. This letter may not be relied upon by you for any other purpose, or
relied upon by, or furnished to, any other person, firm or corporation.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX LLP
ANNEX II(c)
[Letterhead of TRW Automotive Holdings Corp.]
February [ ], 2004
Xxxxxxx, Sachs & Co.
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
and the other several
Underwriters named in Schedule 1
to the Underwriting Agreement
referred to below
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
As the General Counsel for TRW Automotive Holdings Corp., a Delaware
corporation (the "Company"), I have been requested to render this opinion in
connection with the purchase by you of an aggregate of [_______] shares and, at
the election of the Underwriters, up to [_______] additional shares of Common
Stock, par value $.01 per share (the "Shares"), of the Company from the Company
pursuant to the Underwriting Agreement dated February [2], 2004 between you and
the Company (the "Underwriting Agreement").
I (or members of my staff) have examined the Registration Statement on
Form S-1 (File No. 333-110513) filed by the Company under the Securities Act of
1933, as amended (the "Securities Act"), as it became effective under the
Securities Act (the "Registration Statement"); the Company's prospectus dated
February [2], 2004 (the "Prospectus"), filed by the Company pursuant to Rule
424(b) of the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Securities Act; and the Underwriting Agreement. In
addition, I have examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing and upon originals, or duplicates or
certified or conformed copies, of such corporate records, agreements, documents
and other instruments and such certificates or comparable documents or oral
statements of public officials and of officers and representatives of the
Company, and have made such other investigations as I have deemed relevant and
necessary in connection with the opinions hereinafter set forth.
In such examination, I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as duplicates or certified or conformed copies and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications,
assumptions and limitations stated herein, I am of the opinion that to my
knowledge, the Company is not in violation of its charter or by-laws.
I am a member of the Bar of the States of California and Michigan, and
I do not express any opinion herein concerning any law other than the federal
law of the United States and the Delaware General Corporation Law.
This opinion letter is rendered to you in connection with the
above-described transaction. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by, or furnished to, any other person,
firm or corporation without my prior written consent.
Very truly yours,
---------------------------------
Xxxxx X. Xxxxxxxx, Esq.
ANNEX III
TRW AUTOMOTIVE HOLDINGS CORP.
AUTOMOTIVE INVESTORS L.L.C. LOCK-UP AGREEMENT
[ ], 2004
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the several Underwriters
named in Schedule I to the Underwriting Agreement
referred to below
Re: TRW Automotive Holdings Corp. - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the
"Representatives"), propose to enter into an Underwriting Agreement on behalf of
the several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with TRW Automotive Holdings Corp., a Delaware corporation
(the "Company"), providing for a public offering (the "Public Offering") of the
Common Stock of the Company (the "Shares") pursuant to a Registration Statement
on Form S-1 (File No. 333-110513) filed with the Securities and Exchange
Commission (the "SEC"). Terms used, but not defined herein, shall have the
meanings assigned to them in the Underwriting Agreement.
In consideration of the agreement by the Underwriters to offer and
sell the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period beginning from the date of the Prospectus covering the Public
Offering of the Shares and continuing to and including the date that is 180 days
after the date of such Prospectus, the undersigned will not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, except as provided hereunder, any shares of Stock of the
Company or any securities of the Company that are substantially similar to the
Shares, or any options or warrants to purchase any shares of Stock of the
Company, or any securities convertible into, exchangeable for or that represent
the right to receive shares of Stock of the Company, whether now owned or
hereinafter acquired, owned directly by the undersigned (including holding as a
custodian) or with respect to which the undersigned has beneficial ownership
within the rules and regulations of the SEC (collectively the "Undersigned's
Shares"). The foregoing restriction shall not apply to the sale of the
Undersigned's Shares to the Company in connection with the Public Offering
pursuant to the Share Repurchase Agreement dated the date hereof between the
Company and the undersigned.
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Shares even if such Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to any of the Undersigned's Shares or with respect to any security
that includes, relates to, or derives any significant part of its value from the
Undersigned's Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee
or donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust, partnership or limited liability company for the
direct or indirect benefit of the undersigned, provided that the trustee,
distributee or transferee agrees to be bound in writing by the restrictions set
forth herein, and provided further that any such transfer shall not involve a
disposition for value, (iii) distributions of the Undersigned's Shares to direct
or indirect members, partners or stockholders of the undersigned, (iv) transfers
to a nominee or custodian of a person or entity to whom a disposition or
transfer would be permissible under clauses (i) through (iii) or (v) with your
prior written consent on behalf of the Underwriters. In the case of any
disposition, distribution, transfer or sale pursuant to clauses (i) through (v),
each donee, trustee, distributee or transferee shall agree to be bound in
writing by the restrictions set forth herein. In addition, notwithstanding the
foregoing, the undersigned may transfer the capital stock of the Company to any
of its affiliates; provided, however, that in any such case, it shall be a
condition to the transfer that the transferee execute an agreement stating that
the transferee is receiving and holding such capital stock subject to the
provisions of this Lock-up Agreement and there shall be no further transfer of
such capital stock except in accordance with this Lock-up Agreement, and
provided further that any such transfer shall not involve a disposition for
value. The undersigned now has, and, except as contemplated by clauses (i)
through (v) above, for the duration of this Lock-Up Agreement will have, good
and marketable title to the Undersigned's Shares, free and clear of all liens,
encumbrances, and claims whatsoever.
In addition, the undersigned agrees (a) not to amend, supplement or
otherwise modify the Stockholders Agreement or grant any waiver of its rights
thereunder solely with respect to provisions therein relating to any sale,
disposition or transfer of shares of Stock of the Company held by Northrop
Grumman or its affiliates, in each case, without your prior written consent.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's legal
representatives, successors, and assigns.
Notwithstanding anything herein to the contrary, if the closing of the
Public Offering has not occurred prior to February 20, 2004, this letter
agreement shall be of no further force or effect.
Very truly yours,
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Automotive Investors L.L.C
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Title
ANNEX IV
TRW AUTOMOTIVE HOLDINGS CORP.
LOCK-UP AGREEMENT
[ ], 2004
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As representatives of the several Underwriters
named in Schedule I to the Underwriting Agreement
referred to below
Re: TRW Automotive Holdings Corp. - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the
"Representatives"), propose to enter into an Underwriting Agreement on behalf of
the several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with TRW Automotive Holdings Corp., a Delaware corporation
(the "Company"), providing for a public offering (the "Public Offering") of the
Common Stock of the Company (the "Shares") pursuant to a Registration Statement
on Form S-1 (File No. 333-110513) filed with the Securities and Exchange
Commission (the "SEC"). Terms used, but not defined herein, shall have the
meanings assigned to them in the Underwriting Agreement.
In consideration of the agreement by the Underwriters to offer and
sell the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period beginning from the date of the Prospectus covering the Public
Offering of the Shares and continuing to and including the date that is 180 days
after the date of such Prospectus, the undersigned will not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, except as provided hereunder, any shares of Stock of the
Company or any securities of the Company that are substantially similar to the
Shares, or any options or warrants to purchase any shares of Stock of the
Company, or any securities convertible into, exchangeable for or that represent
the right to receive shares of Stock of the Company, whether now owned or
hereinafter acquired, owned directly by the undersigned (including holding as a
custodian) or with respect to which the undersigned has beneficial ownership
within the rules and regulations of the SEC (collectively the "Undersigned's
Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is designed
to or which reasonably could be expected to lead to or result in a sale or
disposition of the Undersigned's Shares even if such Shares would be disposed of
by someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to any of the Undersigned's Shares or with respect to any security
that includes, relates to, or derives any significant part of its value from the
Undersigned's Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, (ii) by will or
intestacy, (iii) to any trust, partnership or limited liability company for the
direct or indirect benefit of the undersigned or the immediate family of the
undersigned, provided that any such transfer shall not involve a disposition for
value, (iv) to a spouse, former spouse, child or other dependent pursuant to a
domestic relations order or an order of a court of competent jurisdiction, (v)
to a nominee or custodian of a person or entity to whom a disposition or
transfer would be permissible under clauses (i) through (iv) above, (vi) in
connection with the exercise of stock options or warrants or securities
convertible into, exchangeable for shares of Common Stock of the Company
outstanding on the date of the final Prospectus; provided that, the shares of
Common Stock issued upon such exercise are subject to the restrictions set forth
herein, (vii) if the undersigned is an executive officer of the Company, to the
Company upon his or her death or disability or termination of employment in
accordance with the terms of the Employee Stockholders Agreement, or (viii) with
your prior written consent on behalf of the Underwriters. For purposes of this
Lock-Up Agreement, "immediate family" shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin. In the case of any
disposition, distribution, transfer or sale pursuant to clauses (i) through (v),
each donee, trustee, distributee or transferee shall agree to be bound in
writing by the restrictions set forth herein. In addition, notwithstanding the
foregoing, if the undersigned is a corporation, partnership or limited liability
company, the corporation, partnership or limited liability company may transfer
the capital stock of the Company to any wholly-owned subsidiary of such
corporation, partnership or limited liability company; provided, however, that
in any such case, it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding such
capital stock subject to the provisions of this Lock-up Agreement and there
shall be no further transfer of such capital stock except in accordance with
this Lock-up Agreement, and provided further that any such transfer shall not
involve a disposition for value. The undersigned now has, and, except as
contemplated by clause (i) through (viii) above, for the duration of this
Lock-Up Agreement will have, good and marketable title to the Undersigned's
Shares, free and clear of all liens, encumbrances, and claims whatsoever. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
Undersigned's Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
Notwithstanding anything herein to the contrary, if the closing of the
Public Offering has not occurred prior to February 20, 2004, this letter
agreement shall be of no further force or effect.
Very truly yours,
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Signature of Stockholder
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Name
