===============================================================================
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
(a Delaware corporation)
9,500,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: March __, 2002
===============================================================================
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
(a Delaware corporation)
9,500,000 Shares of Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
March __, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
FIRST UNION SECURITIES, INC.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Tower, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
American Axle & Manufacturing Holdings, Inc., a Delaware corporation
(the "Company") and the persons listed on Schedule A hereto (the "Selling
Shareholders") confirm their agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other
Underwriters named in the applicable Terms Agreement (as defined below)
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇, Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇▇▇ Brothers Inc. and First Union Securities, Inc. are acting
as representatives (in such capacity, the "Representatives"), with respect to
(i) the sale by the Selling Shareholders, acting severally and not jointly, and
the purchase by the Underwriters, acting severally and not jointly, of up to
9,500,000 shares of Common Stock, par value $0.01 per share, of the Company (the
"Common Stock") in the respective amounts set forth in Schedules A and B hereto
or in the applicable Terms Agreement, from time to time, in or pursuant to one
or more offerings on terms to be determined at the time of sale as set forth in
the applicable Terms Agreement.
Whenever the Selling Shareholders determine to make an offering of
shares of Common Stock through the Representatives, the Company and the Selling
Shareholders will enter into an agreement (each, a "Terms Agreement") providing
for the sale of such shares of Common Stock to, and the purchase and offering
thereof by, the Underwriters. The Terms Agreement relating to the offering of
such shares of Common Stock shall specify the number of shares to be initially
1
sold (the "Initial Securities") and the number of shares to be purchased by the
Underwriters, the initial offering price, the price at which the Initial
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Initial Securities and any other material
terms of the Initial Securities. In addition, if applicable, such Terms
Agreement shall specify whether the Selling Shareholders have granted to the
Underwriters, acting severally and not jointly, the option described in Section
2(b) hereof to purchase all or any part of 1,420,500 additional shares of Common
Stock to cover over allotments, if any (the "Option Securities"). As used
herein, the term "Securities" shall include the Initial Securities and the
Option Securities. The Terms Agreement, which shall be substantially in the form
of Exhibit A hereto, may take the form of an exchange of any standard form or
written communication between the Company, the Selling Shareholders and the
Representatives. Each offering of Securities through the Representatives will be
governed by this Underwriting Agreement, as supplemented by the applicable Terms
Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-83946) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission, and the Company has filed such post-effective amendments thereto
as may be required prior to the execution of the applicable Terms Agreement and
each such post-effective amendment has been declared effective by the
Commission. Promptly after execution and delivery of the applicable Terms
Agreement, the Company will either (i) prepare and file a prospectus and
prospectus supplement in accordance with the provisions of Rule 430A ("Rule
430A") of the 1933 Act Regulations and paragraph (b) of Rule 424 ("Rule 424(b)")
of the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). The
information included in such prospectus and prospectus supplement or in such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each
prospectus and prospectus supplement used before such registration statement
became effective, and any prospectus or prospectus supplement that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement (as so amended, if applicable), including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus and final prospectus supplement, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the form first furnished to the Underwriters for use in
connection with the offering of the Securities are collectively herein called
the "Prospectus;"
2
provided, however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to Securities Exchange Act of 1934, as amended (the "1934
Act"). If Rule 434 is relied on, the term "Prospectus" shall refer to the final
or preliminary prospectus, together with the applicable Term Sheet, and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents and
warrants to each Underwriter as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement as of the date thereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and will 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 not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any
3
amendments or supplements were issued and at the Closing Time (and, if
any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If Rule 434 is used, the Company
will comply with the requirements of Rule 434. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and each Prospectus
delivered to the Underwriters for use in connection with the offering
of the Securities will be identical to the electronically transmitted
copy thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations or the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations"), as applicable,
and, when read together with the other information in the Prospectus,
at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), did not and will
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 not misleading.
(iii) Independent Accountants. The accountants who certified the
financial statements and supporting schedule included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, together with the
related schedule and notes, present fairly in all material respects
the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the respective statement of
income, shareholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedule included in
the Registration Statement presents fairly in all material respects in
accordance with GAAP the information required to be stated therein.
The selected financial data and the summary financial information
included in the Prospectus present fairly in all material respects the
4
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the
Registration Statement.
(v) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries (taken as a whole), whether or not
arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and
its subsidiaries (taken as a whole), and (C) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement and the applicable Terms
Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital
stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity, except
as has been made in connection with that certain Credit Facility,
dated as of October 27, 1997, among the Company, American Axle &
Manufacturing of Michigan, Inc., the lenders named therein, The Chase
Manhattan Bank, as administrative agent and collateral agent and Chase
Manhattan Bank of Delaware, as fronting agent, as amended (the "Credit
Agreement"); none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary. The only Subsidiaries of the
Company are the Subsidiaries listed on Schedule B hereto.
5
(viii) Capitalization. The shares of issued and outstanding
capital stock have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of
capital stock was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Authorization of this Agreement and the Terms Agreement.
This Agreement has been, and the applicable Terms Agreement as of the
date thereof will have been, duly authorized, executed and delivered
by the Company.
(x) Authorization and Description of Securities. The Securities
to be purchased by the Underwriters from the Selling Shareholders have
been duly authorized and validly issued and are fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectus and such description conforms to
the rights set forth in the instruments defining the same; no holder
of the Securities will be subject to personal liability by reason of
being such a holder; and the issuance of the Securities is not subject
to the preemptive or other similar rights of any securityholder of the
Company.
(xi) Absence of Defaults and Conflicts. Neither the Company nor
any of its subsidiaries is in violation of its charter or by-laws or
in default, or, to the Company's knowledge, alleged by any other party
to be in default, in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments")
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement
and the applicable Terms Agreement and the consummation of the
transactions contemplated herein and therein and compliance by the
Company with its obligations under this Agreement and the applicable
Terms Agreement have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a
breach of, or default, or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company or any subsidiary or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a portion of such indebtedness by the Company
or any subsidiary.
6
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the applicable Terms
Agreement or the performance by the Company of its obligations
hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse
Effect.
(xiv) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed
as required, and the descriptions of all such contracts and documents
in the Prospectus are complete and accurate in all material respects.
(xv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and neither
the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations under this Agreement or the applicable Terms
Agreement, in connection with the offering, issuance or sale of the
Securities hereunder or thereunder or
7
the consummation of the transactions contemplated by this Agreement or
the applicable Terms Agreement, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state or foreign securities laws.
(xvii) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them,
except where the failure to possess would not, singly or in the
aggregate, have a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectus, (b) were made in
connection with the Credit Agreement or (c) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or
any subsidiary under any of the leases or subleases mentioned above,
or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xix) Compliance with Cuba Act. The Company has complied with,
and is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder or is exempt therefrom.
(xx) Investment Company Act. The Company is not, and upon the
sale of the Securities as contemplated herein and in the applicable
Terms Agreement will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
8
(xxi) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, 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
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 absence of which would not 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,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) 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.
(xxii) Registration Rights. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act except as described in
the Prospectus. Except for rights properly exercised by the Selling
Shareholders, all applicable "piggy-back" registration rights
otherwise applicable and entitling the persons holding such rights to
have any securities so registered have been duly and validly waived in
respect of the Registration Statement and the transactions
contemplated thereby.
(xxiii) Taxes. The Company and each of its subsidiaries have
filed all necessary federal, state, local and foreign income, payroll,
franchise and other tax returns (after giving effect to extensions)
and have paid all taxes shown as due thereon or with respect to any of
its properties, except for taxes being contested in good faith for
which adequate reserves have been provided, and there is no tax
deficiency that has been, or to the knowledge of the Company is likely
to be, asserted against the Company, any of its subsidiaries or any of
their properties or assets that would result in a Material Adverse
Effect.
(xxiv) Maintenance of Adequate Insurance. The Company and each of
its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as is
reasonably prudent in the business in which it
9
is engaged or proposed to engage after giving effect to the
transactions described in the Prospectus; and the Company does not
have any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not result in a Material
Adverse Effect.
(b) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter as of the date hereof, and to each Underwriter named in the
applicable Terms Agreement as of the date thereof, as of the Closing Time, and,
if the Selling Shareholder is selling Option Securities on a Date of Delivery,
as of each such Date of Delivery, and agrees with each Underwriter, as follows:
(i) Accurate Disclosure. (A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") hereby
represents and warrants that the ▇▇▇▇▇ Information contained in the
Prospectus or any amendments or supplements thereto does not include
any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
Underwriters and ▇▇▇▇▇ agree that the "▇▇▇▇▇ Information" consists
solely of the biographical information with respect to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ incorporated by reference into the Registration Statement and
the information with respect to beneficial ownership of Common Stock
by ▇▇▇▇▇ under the caption "Selling Stockholders" and any comparable
caption in the Prospectus. (B) Blackstone Capital Partners II Merchant
Bank Fund L.P., Blackstone Offshore Capital Partners II L.P. and
Blackstone Family Investment Partnership II L.P. (collectively,
"Blackstone") hereby represents and warrants that the Blackstone
Information contained in the Prospectus or any amendments or
supplements thereto does not include any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The Underwriters and Blackstone
agree that "Blackstone Information" consists solely of the
biographical information with respect to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ incorporated by reference into the
Registration Statement and the information with respect to beneficial
ownership of Common Stock by Blackstone under the caption "Selling
Stockholders" and any comparable caption in the Prospectus.
(ii) Authorization of Agreements. Each Selling Shareholder has
the full right, power and authority to enter into this Agreement, the
applicable Terms Agreement and a Power of Attorney and Custody
Agreement (the "Power of Attorney and Custody Agreement") and to sell,
transfer and deliver the Securities to be sold by such Selling
Shareholder hereunder. The execution and delivery of this Agreement,
the applicable Terms Agreement and the Power of Attorney and Custody
Agreement and the sale and delivery of the Securities to be sold by
such Selling Shareholder and the consummation of the transactions
contemplated herein and compliance by such Selling Shareholder with
its obligations hereunder have been duly authorized by such Selling
Shareholder and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities
to be sold by such Selling Shareholder or any property or assets of
such Selling Shareholder pursuant to any
10
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other agreement or instrument to
which such Selling Shareholder is a party or by which such Selling
Shareholder may be bound, or to which any of the property or assets of
such Selling Shareholder is subject, nor will such action result in
any violation of the provisions of the charter or by-laws or other
organizational instrument of such Selling Shareholder, if applicable,
or any applicable treaty, law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over such Selling
Shareholder or any of its properties.
(iii) Direct Holder of Securities; Title to Securities. Such
Selling Shareholder holds and will hold at the Closing Time and, if
any Option Securities are purchased, on the relevant Date of Delivery,
the Securities to be sold by such Selling Shareholder hereunder and
under the applicable Terms Agreement, free and clear of any adverse
claim, security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind, other than pursuant to this
Agreement and the applicable Terms Agreement; such Securities are
certificated securities in registered form and are not held in any
securities account or by or through any securities intermediary within
the meaning of the Uniform Commercial Code as in effect in the State
of New York ("NYUCC"); such Selling Stockholder has, and, at the
Closing Time and, if any Option Securities are purchased, on any
relevant Date of Delivery, will have, full right, power and authority
to hold, sell, transfer and deliver the Securities to be sold by such
Selling Stockholder pursuant to this Agreement and the applicable
Terms Agreement, and upon delivery of such Securities and payment of
the purchase price therefor as herein contemplated, assuming each such
Underwriter has no written notice of any adverse claim, each of the
Underwriters will be a protected purchaser (as defined in the NYUCC)
with respect to the Securities purchased by it from such Selling
Shareholder, and each such Underwriter will acquire the interest of
such Selling Shareholder in such Securities free and clear of any
adverse claim, security interest, mortgage, pledge, lien, charge,
claim, equity or encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement.
Such Selling Shareholder has duly executed and delivered, in the form
heretofore furnished to the Representative(s), the Power of Attorney
and Custody Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in
the case of ▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, in the case of
Blackstone, as attorneys-in-fact (the "Attorneys-in-Fact") and
Equiserve Trust Company N.A., as custodian (the "Custodian"); the
Custodian is authorized to deliver the Securities to be sold by such
Selling Shareholder hereunder and to accept payment therefor; and each
Attorney-in-Fact is authorized to execute and deliver this Agreement
and the applicable Terms Agreement and the certificate referred to in
Section 5(f) or that may be required pursuant to Sections 5(l) on
behalf of such Selling Shareholder, to sell, assign and transfer to
the Underwriters the Securities to be sold by such Selling Shareholder
hereunder, to determine the purchase price to be paid by the
Underwriters to such Selling Shareholder, as provided in Section 2(a)
hereof, to authorize the delivery of the Securities to be sold by such
Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Shareholder in connection
with this Agreement and the applicable Terms Agreement.
11
(v) Absence of Manipulation. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(vi) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by such Selling
Shareholder of its obligations hereunder or in the Power of Attorney
and Custody Agreement, or in connection with the sale and delivery of
the Securities hereunder or the consummation of the transactions
contemplated by this Agreement and the applicable Terms Agreement,
except such as may have previously been made or obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(vii) Restriction on Sale of Securities. During a period of 90
days from the date of the applicable Terms Agreement, such Selling
Shareholder will not, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale or lend or otherwise dispose
of or transfer, directly or indirectly, any share of Common Stock or
any securities convertible into or exercisable or exchangeable for
Common Stock whether now owned or hereafter acquired or with respect
to which such Selling Shareholder has or hereafter acquires the power
of disposition, or request or demand that the Company file any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to the Securities to be sold hereunder.
(viii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant to
this Agreement and the applicable Terms Agreement, in suitable form
for transfer by delivery or accompanied by duly executed instruments
of transfer or assignment in blank with signatures guaranteed, have
been placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the Underwriters pursuant
to this Agreement and the applicable Terms Agreement.
(ix) No Association with NASD. To such Selling Shareholder's
knowledge, neither such Selling Stockholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(m) of the
By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(the "NASD") that is participating as an underwriter or selling group
member in the offering of the Securities.
12
(c) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of a Selling Shareholder as such and
delivered to the Representatives or to counsel for the Underwriters pursuant to
the terms of this Agreement and the applicable Terms Agreement shall be deemed a
representation and warranty by such Selling Shareholder to the Underwriters as
to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. The several commitments of the Underwriters to
purchase the Initial Securities pursuant to the applicable Terms Agreement shall
be deemed to have been made on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth.
(b) Option Securities. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Shareholders, acting severally and not jointly, may grant, if
so provided in the applicable Terms Agreement, an option to the Underwriters,
severally and not jointly, to purchase up to an additional number of shares of
Common Stock from the Selling Shareholders as set forth therein, at the price
per share set forth therein, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial Securities but
not payable on the Option Securities. The option hereby granted will expire 30
days after the date of such Terms Agreement and may be exercised in whole or in
part (ratably among the Selling Shareholders) from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representatives to the Selling Shareholders setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities each such Underwriter has
agreed to purchase as set forth in the applicable Terms Agreement opposite the
name of such Underwriter bears to the total number of Initial Securities, and
the Selling Stockholders, acting severally and not jointly, shall sell that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities each such Selling Shareholder has agreed to
sell as set forth in the applicable Terms Agreement opposite the name of such
Selling Shareholder bears to the total number of Initial Securities being sold
by the Selling Shareholders, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ & Maw, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representatives,
13
the Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date of the applicable Terms Agreement (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Selling Shareholders (such time and date of payment and
delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Selling Shareholders, on each Date of Delivery as specified in the
notice from the Representatives to the Selling Shareholders.
Payment shall be made to the Selling Shareholders by wire transfer of
immediately available funds to bank accounts designated by the Custodian
pursuant to each Selling Shareholder's power of Power of Attorney and Custody
Agreement, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the
14
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object in writing within a reasonable period of time.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to the Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will furnish to
each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and the applicable Terms Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement
15
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement or the date of the applicable Terms Agreement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement or
the date of the applicable Terms Agreement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect and maintain
the listing of the Securities on the New York Stock Exchange and will file with
the New York Stock Exchange all documents and notices required by the New York
Stock Exchange of companies that have securities listed thereon.
(i) Restriction on Sale of Securities. During a period of 90 days from the
date of the applicable Terms Agreement, the Company will not, without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant for the sale or
lend or otherwise dispose of or transfer any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the
16
Securities to be sold hereunder, (B) grants of stock options and other awards
pursuant to the terms of the Company's stock option plans in effect on the date
hereof and described in the Prospectus, (C) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (D)
any shares of Common Stock issued by the Company pursuant to the American Axle &
Manufacturing, Inc. 401(k) Plan or (E) offers, sales and issuances of shares of
Common Stock, options, rights or warrants to purchase or any securities
convertible into or exercisable or exchangeable for Common Stock in connection
with acquisitions of businesses, companies or assets by the Company so long as
the recipients of such shares, options, rights, warrants or convertible
securities are subject to the restrictions of this Section 3(i) until the
expiration of such 90-day period.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its and the Selling Shareholders' obligations
under this Agreement and the applicable Terms Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's and Selling Shareholders' respective counsel, accountants and other
advisors, (iv) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey and any supplement thereto, (v) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (vi) the
fees and expenses of any transfer agent or registrar for the Securities, (vii)
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the NASD of the
terms of the sale of the Securities, if applicable, (viii) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange and (ix) any stamp duties, capital duties and stock transfer taxes, if
any, payable upon the sale of the Securities to the Underwriters, and their
transfer between the Underwriters pursuant to an agreement between such
Underwriters. It is understood, however, that except as provided in this Section
or Sections 6, 7 or 9 hereof, the Underwriters shall pay their own costs and
expenses, including the fees and disbursements of their counsel, stock transfer
taxes due upon resale of any of the Securities by them and any advertising
expenses incurred in connection with any offers they may make.
(b) Termination of Agreement. If this Agreement or the applicable Terms
Agreement is terminated by the Representatives in accordance with the provisions
of Section 5 (other than as
17
a result of the failure to satisfy the condition set forth in Section 5(j)),
Section 9(a)(i) or Section 11 hereof, the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
(c) Allocation of Expenses. The provisions of this Section shall not affect
any agreement that the Company and the Selling Shareholders may make for the
sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
several Underwriters hereunder and under the applicable Terms Agreement are
subject to the accuracy of the representations and warranties of the Company and
the Selling Shareholders contained in Section 1 hereof or in certificates of any
officer of the Company or any subsidiary of the Company or on behalf of any
Selling Shareholder delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, and of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.,
General Counsel of the Company, each in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters to the effect set forth in Exhibits
B-1 and B-2 hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for the Selling Shareholders. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Shareholders, and
of Walkers, counsel to Blackstone Offshore Capital Partners II L.P., each in
form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters to
the effect as counsel to the Underwriters may reasonably request.
(d) Opinion of Counsel for the Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Mayer, Brown, ▇▇▇▇ & Maw, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i) (solely as to the
18
valid existence and good standing and corporate power and authority of the
Company), (ii) (solely as to the Securities), (iii) (solely as to preemptive or
other similar rights arising by operation of law or under the charter or by-laws
of the Company), (iv) through (vi), inclusive, and the penultimate paragraph of
Exhibit B-1 hereto. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York, the federal law of the United States and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company or any of its subsidiaries whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(f) Certificate of Selling Shareholders. At Closing Time, the
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each Selling Shareholder contained in
Section 1(b) hereof are true and correct in all respects with the same force and
effect as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement and the applicable
Terms Agreement at or prior to Closing Time.
(g) Accountants' Comfort Letter. At the time of the execution of the
applicable Terms Agreement, the Representatives shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the other Underwriters containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(h) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Section,
19
except that the specified date referred to shall be a date not more than three
business days prior to Closing Time.
(i) Approval of Listing. At Closing Time, the Securities shall have been
approved for listing on the New York Stock Exchange.
(j) No Objection. If a registration statement for an offering of Securities
has been filed with the NASD for review, the NASD shall have confirmed that it
has not raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(k) Lock-up Agreements. At the date of the applicable Terms Agreement, the
Representatives shall have received an agreement substantially in the form of
Exhibit D hereto signed by the persons listed on Schedule C hereto (provided
that those persons shown with an asterisk on Schedule C shall only be subject to
a 45-day lock-up).
(l) Conditions to Purchase of Option Securities. In the event that the
Underwriters are granted an over-allotment option in the applicable Terms
Agreement and they exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Company and the Selling Shareholders contained herein and the
statements in any certificates furnished by the Company, any subsidiary of the
Company and the Selling Shareholders shall be true and correct as of each Date
of Delivery and, at the relevant Date of Delivery, the Representatives shall
have received:
(i) Officers' Certificate. A certificate, dated such Date of Delivery,
of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Shareholders. A certificate, dated such
Date of Delivery, of an Attorney-in-Fact on behalf of each Selling
Shareholder confirming that the certificate delivered at Closing Time
pursuant to Section 5(f) remains true and correct as of such Date of
Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, and of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
General Counsel for the Company, each in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling Shareholders. The favorable
opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling
Shareholders, and of Walkers, counsel to Blackstone Offshore Capital
Partners II L.P., each in form and substance satisfactory to counsel for
the Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
20
(v) Opinion of Counsel for the Underwriters. The favorable opinion of
Mayer, Brown, ▇▇▇▇ & Maw, counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from Deloitte & Touche LLP,
in form and substance satisfactory to the Representatives and dated such
Date of Delivery, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 5(g) hereof,
except that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date of
Delivery.
(m) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
sale of the Securities as contemplated herein and in the applicable Terms
Agreement, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company and the Selling Shareholders in connection
with the sale of the Securities as contemplated herein and in the applicable
Terms Agreement shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(n) Termination of Terms Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement, or, in the case of any condition to the purchase of
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
21
however, that the Company will not be liable in any such case to any
Underwriter to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission in the Blackstone
Information;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that (A) this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) and (B) as
to any preliminary prospectus, this indemnity agreement shall not inure to the
benefit of any Underwriter or any person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
on account of any loss, liability, claim, damage or expense arising from the
fact that such Underwriter sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus (as then amended or supplemented) in any case where such delivery
is required by the 1933 Act if the Company has previously furnished copies
thereof to such Underwriter in the quantities requested and the loss, liability,
claim, damage or expense of such Underwriter results from an untrue statement or
omission of a material fact contained in such preliminary prospectus which the
Company has sustained the burden of proving was corrected in the Prospectus (as
then amended or supplemented).
(b) Indemnification of the Underwriters by the Selling Shareholders. Each
Selling Shareholder agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with reference to the
Blackstone Information, in the case of Blackstone, and the ▇▇▇▇▇ Information, in
the case of ▇▇▇▇▇.
22
(c) Indemnification of Company, Directors and Officers and the Selling
Shareholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the Selling
Shareholders and each person, if any, who controls the Selling Shareholders
within the meaning of Section 15 of the 1933 Act of Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇; and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding 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.
(e) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel which are reimbursable under
this Section 6 or Section 7, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into more
than 45
23
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement, which notice shall include a statement by the indemnified party that
it proposes to enter into such settlement on such terms to the extent permitted
by this Section 6(e), at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other hand from
the offering of the Securities pursuant to this Agreement and the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholders on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement and
the applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement and the applicable Terms Agreement (before deducting
expenses) received by the Selling Shareholders and the total underwriting
discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Securities as
set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Shareholders or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7
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 Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by
24
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Selling Shareholders within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
the Selling Shareholders, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
the applicable Terms Agreement and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
the applicable Terms Agreement or in certificates of officers of the Company or
any of its subsidiaries or the Selling Shareholders submitted pursuant hereto or
thereto shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company or the Selling Shareholders, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. This Agreement (excluding the applicable Terms
Agreement) may be terminated for any reason at any time by the Company, the
Selling Shareholders or the Representatives, as the case may be, upon the giving
of 30 days' prior written notice of such termination to the other parties
hereto. The Representatives may terminate the applicable Terms Agreement, by
notice to the Company and the Selling Shareholders, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of the Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company or any of its subsidiaries, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any material adverse change in
the financial markets in the United States or the international financial
markets, any outbreak of
25
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the New York Stock Exchange has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by the New York
Stock Exchange or by order of the Commission, the NASD or any other governmental
authority, or (iv) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, or (v) if a
banking moratorium has been declared by Federal or New York authorities.
(b) Liabilities. If this Agreement or the applicable Terms Agreement is
terminated pursuant to this Section, such termination shall be without liability
of any party to any other party except as provided in Section 4 hereof, and
provided further that Sections 1, 6, 7 and 8 shall survive such termination and
remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
or the applicable Terms Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, pursuant to such Terms Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the Selling Shareholders to
sell the Option Securities to be purchased and sold on such Date of Delivery,
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
the applicable Terms Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the obligation
of the Underwriters to purchase and the Selling Shareholders to sell the
relevant Option Securities, as the case may be, either (i) the Representatives
or (ii) the Company and the Selling Shareholders shall have the right to
postpone
26
the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
SECTION 11. Default by One or More of the Selling Shareholders. If a
Selling Shareholder shall fail at Closing Time or at a Date of Delivery to sell
and deliver the number of Securities which such Selling Shareholder or Selling
Shareholders are obligated to sell hereunder, and the remaining Selling
Shareholders do not exercise the right hereby granted to increase, pro rata or
otherwise, the number of Securities to be sold by them hereunder to the total
number to be sold by all Selling Shareholders as set forth in the applicable
Terms Agreement, then the Underwriters may, at option of the Representatives, by
notice from the Representatives to the Company and the non-defaulting Selling
Shareholders, either (i) terminate the applicable Terms Agreement without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (ii) elect to
purchase the Securities which the non-defaulting Selling Shareholders have
agreed to sell hereunder. No action taken pursuant to this Section 11 shall
relieve any Selling Shareholder so defaulting from liability, if any, in respect
of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section 11, each of the Representatives and the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION 12. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇
▇'▇▇▇▇▇; notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., with a copy to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
attention of ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., notices to ▇▇▇▇▇ shall be directed to
_________, and notices to Blackstone shall be directed to The Blackstone Group,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
SECTION 13. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Underwriters, the
Company and the Selling Shareholders and their respective successors. Nothing
expressed or mentioned in this Agreement or the applicable Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and the Selling Shareholders and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or such Terms Agreement or any provision herein or therein contained. This
Agreement and the applicable Terms Agreement and all conditions and provisions
hereof and thereof are intended to be for the sole and exclusive benefit of the
27
Underwriters, the Company and the Selling Shareholders and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT AND ANY APPLICABLE TERMS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY
REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings herein are
for convenience only and shall not affect the construction hereof.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
By:
--------------------------------
Name:
Title:
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANK FUND
▇.▇.
▇▇▇▇▇▇▇▇▇▇ OFFSHORE CAPITAL PARTNERS II ▇.▇.
▇▇▇▇▇▇▇▇▇▇ FAMILY INVESTMENT PARTNERSHIP II L.P.
By:
--------------------------------
As Attorney-in-Fact
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
CONFIRMED AND ACCEPTED, as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
FIRST UNION SECURITIES, INC.
29
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
--------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in the
applicable Terms Agreement.
30
SCHEDULE A
SELLING SHAREHOLDERS
Blackstone Capital Partners II Merchant Bank Fund ▇.▇.
▇▇▇▇▇▇▇▇▇▇ Offshore Capital Partners II ▇.▇
▇▇▇▇▇▇▇▇▇▇ Family Investment Partnership II L.P.
The ▇▇▇▇▇ Annuity Trust 2001
Sch A-1
SCHEDULE B
SUBSIDIARIES
Percent Owned by
Subsidiary Organized Immediate Parent
---------- --------- ----------------
American Axle & Manufacturing Holdings, Inc. Delaware
American Axle & Manufacturing, Inc. Delaware 100%
AAM Receivables Corp. Delaware 100%
American Axle International Sales, Ltd. U.S. Virgin Islands 100%
Colfor Manufacturing Inc. Delaware 100%
MSP Industries Corporation Michigan 100%
MSP Team, LLC Michigan 99% (1)
American Axle & Manufacturing de Mexico 99.99% (1)
Mexico Holdings S. de ▇.▇. de C.V.
Guanajuato Gear & Axle de Mexico 99.99% (1)
Mexico S. de ▇.▇. de C.V.
American Axle & Manufacturing Mexico 99.99% (1)
de Mexico S.A. de C.V.
AAM International Holdings, Inc. Delaware 100%
Albion Automotive (Holdings) Scotland 100%
Limited
Albion Automotive Scotland 100%
Limited
Farington Components England 100%
Limited
AAM Comercio e Participacoes Brazil 99.99% (1)
Ltda.
AAM do Brasil Ltda. Brazil 90%
(1) Remaining Shares owed by the Company or its subsidiaries
Sch A-1
SCHEDULE C
PERSONS SUBJECT TO LOCK-UP
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇▇▇ Trust dated October 31, 1998*
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.*
▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.E.*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Trustees, for their successors in trust,
under the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ LIVING TRUST,
dated July 27, 2000 and any amendments thereto*
▇▇▇▇ ▇▇▇▇▇▇▇*
Forest ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
* 45-day lock-up
Sch A-1
Exhibit A
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
(a Delaware corporation)
TERMS AGREEMENT
____________ ____, 2002
To: American Axle & Manufacturing Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that the selling shareholders named below (the "Selling
Shareholders") propose to sell, acting severally and not jointly, the shares of
common stock, par value $.01 per share (the "Common Stock"), of American Axle &
Manufacturing Holdings, Inc. opposite their names set forth below (such
securities also being hereinafter referred to as the "Initial Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we the underwriters named below (the "Underwriters") offer to purchase,
severally and not jointly, the number Initial Securities opposite their names
set forth below at the purchase price set forth below, and a proportionate share
of Option Securities set forth below, to the extent any are purchased.
SELLING SHAREHOLDERS
NUMBER OF
INITIAL
NAME OF SELLING SHAREHOLDERS SECURITIES
---------------------------- ----------
Blackstone Capital Partners II Merchant Bank Fund L.P. ................................. _________
Blackstone Offshore Capital Partners II L.P............................................. _________
Blackstone Family Investment Partnership II L.P. ....................................... _________
▇▇▇▇▇ Annuity Trust 2001................................................................ _________
UNDERWRITERS
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ________
Credit Suisse First Boston Corporation ________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ________
▇▇▇▇▇▇ Brothers Inc. ________
First Union Securities, Inc. ________
TOTAL:
Sch E-1
The Securities shall have the following terms:
Title: Common Stock, par value $.01 per share
Number of Initial Securities:
Number of Option Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I
hereto entitled American Axle & Manufacturing Holdings, Inc. (a Delaware
corporation), 9,500,000 Shares of Common Stock, Purchase Agreement, dated
[________ ____], 2002 are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Sch E-2
Please accept this offer no later than ____ o'clock P.M. (New York
City time) on ___________, 2002 by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
FIRST UNION SECURITIES, INC.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: _____________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in this
Terms Agreement.
Accepted:
AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.
By::________________________
Name:
Title:
BLACKSTONE CAPITAL PARTNERS II MERCHANT BANK FUND ▇.▇.
▇▇▇▇▇▇▇▇▇▇ OFFSHORE CAPITAL PARTNERS II ▇.▇.
▇▇▇▇▇▇▇▇▇▇ FAMILY INVESTMENT PARTNERSHIP II L.P.
By:_____________________________________
As Attorney-in-Fact
------------------------------------
[▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇]
Sch E-3
Exhibit B-1
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
COUNSEL TO THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware
and has full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under the Purchase Agreement.
(ii) All outstanding shares of the Company's Common Stock, including the
Securities, have been duly authorized and validly issued, and all
outstanding shares of the Company's Common Stock, including the
Securities, are fully paid and nonassessable.
(iii) There are no preemptive rights under federal law, under the Delaware
General Corporation Law or under any agreement or other instrument
known to us to subscribe for or purchase the Securities. There are no
preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the
Company's capital stock pursuant to the Company's charter or by-laws
or, except as otherwise disclosed in the Registration Statement and
except for restrictions on transfer applicable to parties to the
Stockholders' Agreement or shares of the Company's Common Stock issued
under the stock compensation plans (as such term is defined in the
Registration Statement), any agreement or other instrument.
(iv) The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
(v) The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective under the 1933 Act, and the Prospectus
was filed on [_______], 2002 pursuant to Rule 424(b) and, to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement has
been issued or proceeding for that purpose has been instituted or
threatened by the Commission.
(vi) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements, with
any applicable requirements of the charter and by-laws of the Company
and the requirements of the New York Stock Exchange.
(vii) The description of the Company's Common Stock incorporated by reference
in the Prospectus, insofar as it purports to constitute summaries of
the terms of the Company's Common Stock (including the Securities),
constitutes an accurate summary of the terms of such Common Stock in
all material respects.
(viii) The description of the Company's Common Stock incorporated by reference
in the Prospectus and the statements made in the Registration Statement
under Item 15, insofar
A-1-1
as they purport to constitute summaries of the terms of New York or
federal statutes or the Delaware General Corporation Law, rules and
regulations thereunder, legal proceedings or the Company's charter and
bylaws, constitute accurate summaries of the matters summarized in all
material respects.
(ix) No filing, consent, approval, authorization, 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 such counsel's knowledge,
any federal or New York court or any Delaware court acting pursuant to
the Delaware General Corporation Law is required for the compliance by
the Company with all of the provisions of the Purchase Agreement,
except for the registration under the 1933 Act of the Securities, 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
Securities by the Underwriters.
(x) The execution and delivery by the Company of the Purchase Agreement
and the applicable Terms Agreement, the consummation by the Company of
the transactions provided for in the Purchase Agreement and the
applicable Terms Agreement and the compliance by the Company with all
of the provisions of the Purchase Agreement and the Terms Agreement do
not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with, breach or result in a default or
a Repayment Event (as defined in Section 1(xi) of the Purchase
Agreement) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any subsidiary pursuant to, any indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or any other agreement or
instrument filed as an exhibit to the Registration Statement or the
documents incorporated by reference therein (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result
in a violation of the charter or bylaws of the Company or any
subsidiary, 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 judgment or 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 or court having
jurisdiction over the Company or any of its subsidiaries or any of
their properties, assets or operations.
(xi) To such counsel's knowledge, there are no other contracts or
agreements between the Company and any person granting such person the
right (other than rights which have been waived) to require the
Company to include any securities of the Company owned or to be owned
by such person in the securities registered pursuant to the
Registration Statement.
(xii) The Company is not an "investment company" within the meaning of and
subject to regulation under the Investment Company Act of 1940, as
amended.
A-1-2
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel
employed by the Company, representatives of the independent public accountants
for the Company, representatives of the Underwriters and counsel for the
Underwriters, at which conferences the contents of the Registration Statement
and Prospectus and related matters were discussed and, although such counsel are
not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except as set forth in paragraphs (vii) and (viii),
above and have not made any independent check or verification thereof, on the
basis of the foregoing, (i) in such counsel's opinion, the Registration
Statement or any amendment thereto, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information (if
applicable), as the time such Registration Statement or any such amendment
became effective or at the date of the applicable Terms Agreement, and the
Prospectus and the documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as applicable, complied
as to form in all material respects with the requirements of the 1933 Act or the
1934 Act, as applicable, and the applicable rules and regulations of the
Commission thereunder, except that such counsel need express no opinion with
respect to the financial statements or other financial data contained in the
Registration Statement or the Prospectus, and (ii) such counsel has no reason to
believe that either the Registration Statement or any amendment thereto,
including the Rule 430A Information and Rule 434 Information (if applicable), at
the time such Registration Statement or any such amendment became effective or
at the date of the applicable Terms Agreement, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or the
Prospectus or any amendment or supplement thereto, at the time the Prospectus
was issued, at the time any such amended or supplemented Prospectus was issued
or at the Closing Time, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that such counsel need express no opinion with respect to
the financial statements or other financial data contained in the Registration
Statement or the Prospectus.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and public officials which are furnished to the Representatives.
In addition, such counsel may state their opinion is limited to matters governed
by the laws of the State of New York, the corporate law of State of Delaware and
the federal law of the United States.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ESQ.,
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(ii) Each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of
its incorporation, and each such Subsidiary has corporate power and
authority to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction where such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement, all of the issued and outstanding
capital of each Subsidiary has been duly authorized and validly
issued, is fully paid and nonassessable and, to such counsel's
knowledge, is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(iii) To such counsel's knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company or
any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed as an exhibit to the
Registration Statement or the documents incorporated by reference
therein, except for such defaults that would not result in a Material
Adverse Effect.
(iv) To such counsel's knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the
Company or any subsidiary is subject, before or brought by any court or
governmental agency or body, domestic or foreign, which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreement and the applicable Terms
Agreement or the performance by the Company of its obligations
thereunder.
A-2-1
(v) To such counsel's knowledge, no filing, consent, approval,
authorization, registration or qualification of or with any
governmental agency or body or any court, is required for the
compliance by the Company with all of the provisions of the Purchase
Agreement or the applicable Terms Agreement, except for the
registration under the 1933 Act of the Securities, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters.
(vi) If the Prospectus contains a "Capitalization" section, the authorized,
issued and outstanding capital stock of the Company is as set forth in
the column entitled "Actual" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to the Purchase Agreement or
pursuant to reservations, agreements or employee benefit plans referred
to in the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the Prospectus).
(vii) None of the outstanding shares of Common Stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company; and the sale of the Securities by the
Selling Shareholders is not subject to the preemptive or other similar
rights of any securityholder of the Company.
(viii) The execution, delivery and performance by the Company of the Purchase
Agreement and the applicable Terms Agreement, the compliance by the
Company with all of the provisions thereof and the consummation of the
transactions contemplated in the Purchase Agreement and the applicable
Terms Agreement and in the Registration Statement do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with, breach or result in a default or Repayment Event (as
defined in Section 1(xi) of the Purchase Agreement) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant to,
any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to
such counsel, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property
or assets of the Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result
in a violation of the charter or bylaws of the Company or any
subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to such counsel, of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their
respective properties, assets or operations.
(ix) To such counsel's knowledge, the Company and its subsidiaries own or
possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and to such counsel's knowledge, neither the Company
nor any of its subsidiaries has received any notice or is
A-2-2
otherwise aware of any infringement of or conflict with asserted
rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(x) There are no statutes or regulations material to the Company or its
operations or, to such counsel's knowledge, pending or threatened
legal or governmental proceedings required to be described in the
Prospectus which are not described as required, or any contracts,
instruments or other documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as exhibits
to the Registration Statement or the documents incorporated by
reference therein which are not described and filed as required; and
all descriptions in the Registration Statement of contracts and other
agreements to which the Company or its subsidiaries are a party are
complete and accurate in all material respects.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel to
the Company, representatives of the independent public accountants for the
Company, representatives of the Underwriters and counsel for the Underwriters,
at which conferences the contents of the Registration Statement and Prospectus
and related matters were discussed and, although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus except as set forth in paragraphs (vi) and (x) above and has not made
any independent check or verification thereof, on the basis of the foregoing,
nothing has come to such counsel's attention that leads him to believe that
either the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), at the time such
Registration Statement or any such amendment became effective or at the date of
the applicable Terms Agreement, contained an untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, or the Prospectus or any
amendment or supplement thereto, at the time the Prospectus were issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except that such counsel need express no opinion with
respect to the financial statements or other financial data contained in the
Registration Statement or the Prospectus.
A-2-3
Exhibit D
FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR
OTHER STOCKHOLDERS PURSUANT TO SECTION 5(k)
March __, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇ BROTHERS INC.
FIRST UNION SECURITIES, INC.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: American Axle & Manufacturing Holdings, Inc. - Public Offering
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of
American Axle & Manufacturing Holdings, Inc., a Delaware corporation (the
"Company"), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and Credit Suisse First Boston
Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇▇▇ Brothers, Inc. and First
Union Securities, Inc. propose to enter into a Purchase Agreement (the "Purchase
Agreement") with the Company providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $0.01 per share (the
"Common Stock"). In recognition of the benefit that such an offering will confer
upon the undersigned as a stockholder and an officer and/or director of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the applicable Terms Agreement that, during a period
of 90 days from the date of the applicable Terms Agreement, the undersigned will
not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise lend, transfer or dispose of or transfer
any shares of the Company's Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, whether now owned or hereafter
acquired by the undersigned or with respect to
1
which the undersigned has or hereafter acquires the power of disposition, or
cause the Company to file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:
Print Name:
2