KAISER ALUMINUM CORPORATION 5,461,870 Shares Common Stock ($0.01 par value per Share) Underwriting Agreement
Exhibit 1.1
▇▇▇▇▇▇ ALUMINUM CORPORATION
5,461,870 Shares
Common Stock
($0.01 par value per Share)
($0.01 par value per Share)
January [•], 2007
January [•], 2007
UBS Securities LLC
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
as Managing Underwriters
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
as Managing Underwriters
| c/o | UBS Securities LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Bear, ▇▇▇▇▇▇▇ & Co. Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ |
Ladies and Gentlemen:
Those stockholders of ▇▇▇▇▇▇ ALUMINUM CORPORATION, a Delaware corporation (the
“Company”), identified in Schedule C annexed hereto (each, a “Selling
Stockholder”), propose to sell to the underwriters named in Schedule A annexed hereto
(the “Underwriters”), for whom you are acting as representatives, an aggregate of 5,461,870
shares (the “Firm Shares”) of common stock, $0.01 par value per share (the “Common
Stock”), of the Company. The number of Firm Shares to be sold by each Selling Stockholder is
the number of Firm Shares set forth opposite the name of such Selling Stockholder in Schedule
C annexed hereto. In addition, solely for the purpose of covering over-allotments, the VEBA
for Retirees of ▇▇▇▇▇▇ Aluminum, a trust under the laws of the State of Pennsylvania (the “VEBA
Trust”), a Selling Stockholder, proposes to grant to the Underwriters the option to purchase
from such Selling Stockholder up to an additional 819,280 shares of Common Stock (the
“Additional Shares”). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the “Shares.” The Shares are described in the
Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
S-1 (File No. 333-137623) under the Act, including a prospectus, relating to the Shares.
Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof,
(ii) any information contained in a prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, to the extent such information is deemed, pursuant to Rule 430A or Rule 430C under
the
Act, to be part of the registration statement at the Effective Time, and (iii) any
registration statement filed to register the offer and sale of Shares pursuant to Rule 462(b) under
the Act.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Shares, copies of one or more preliminary prospectuses relating to the
Shares. Except where the context otherwise requires, “Preliminary Prospectus,” as used
herein, means each such preliminary prospectus, in the form so furnished.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
prospectus, relating to the Shares, filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act), or, if no such filing is required, the final prospectus
included in the Registration Statement at the time it became effective under the Act, in each case
in the form furnished by the Company to you for use by the Underwriters and by dealers in
connection with the offering of the Shares.
“Permitted Free Writing Prospectuses,” as used herein, means the documents, if any,
listed in Schedule B-1 annexed hereto and each “road show” (as defined in Rule 433 under
the Act), if any, related to the offering of the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act) (each such road show, an “Electronic Road
Show”) described on Schedule B-2 annexed hereto. The Underwriters have not offered or
sold and will not offer or sell, without the Company’s consent, any Shares by means of any “free
writing prospectus” (as defined in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the Act, other than a Permitted Free
Writing Prospectus.
“Disclosure Package,” as used herein, means any Preliminary Prospectus together with
any combination of one or more of the Permitted Free Writing Prospectuses, if any, together with
the information on Schedule E annexed hereto.
As used in this Agreement, “business day” shall mean a day on which the NASDAQ Global
Market (the “NASDAQ”) is open for trading. The terms “herein,” “hereof,” “hereto,”
“hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of
this Agreement. The term “or,” as used herein, is not exclusive.
The Company has prepared and filed, in accordance with Section 12 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange
Act”), a registration statement (as amended, the “Exchange Act Registration Statement”)
on Form 8-A (File No. 000-52105) under the Exchange Act to register, under Section 12(g) of the
Exchange Act, the class of securities consisting of the Common Stock.
The Company, each of the Selling Stockholders and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, each of the Selling Stockholders agrees to
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sell, in each case severally and not jointly, to the respective Underwriters, and each of the
Underwriters, severally and not jointly, agrees to purchase from each Selling Stockholder, the
respective number of Firm Shares (subject to such adjustment as the Managing Underwriters may
determine to avoid fractional shares) which bears the same proportion to the total number of Firm
Shares to be sold by such Selling Stockholder, as the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule A annexed hereto, subject to adjustment in accordance
with Section 11 hereof, bears to the total number of Firm Shares, in each case at a purchase price
of $[•] per Share. The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to offer the Firm Shares
upon the terms set forth in the Prospectus. You may from time to time increase or decrease the
public offering price after the initial public offering to such extent as you may determine.
In addition, the VEBA Trust hereby grants to the several Underwriters the option (the
“Over-Allotment Option”) to purchase, and upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Underwriters shall have
the right to purchase, severally and not jointly, from the VEBA Trust, ratably in accordance with
the number of Firm Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters to the Selling
Stockholders for the Firm Shares. The Over-Allotment Option may be exercised by the Managing
Underwriters on behalf of the several Underwriters at any time and from time to time on or before
the thirtieth day following the date of the Prospectus, by written notice to the Company and the
VEBA Trust. Such notice shall set forth the aggregate number of Additional Shares as to which the
Over-Allotment Option is being exercised and the date and time when the Additional Shares are to be
delivered (any such date and time being herein referred to as an “additional time of
purchase”); provided, however, that no additional time of purchase shall be
earlier than the “time of purchase” (as defined below), nor earlier than the second business day
after the date on which the Over-Allotment Option shall have been exercised, nor later than the
tenth business day after the date on which the Over-Allotment Option shall have been exercised.
Upon any exercise of the Over-Allotment Option, and subject to such adjustment as the Managing
Underwriters may determine to avoid fractional shares: (i) the number of Additional Shares to be
purchased by each Underwriter, severally and not jointly, shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased (the “Option Purchased
Amount”) as the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A annexed hereto bears to the total number of Firm Shares, subject to adjustment
in accordance with Section 11 hereof.
Pursuant to powers of attorney (the “Powers of Attorney”) granted by each Selling
Stockholder other than the VEBA Trust (which Powers of Attorney shall be satisfactory to the
Managing Underwriters), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ shall act as
representatives of each of the Selling Stockholders with the exception of the VEBA Trust. Each of
the foregoing representatives (collectively, the “Representatives of the Selling
Stockholders”) is authorized, on behalf of each Selling Stockholder (excluding the VEBA Trust),
among other things, to execute any documents necessary or desirable in connection with the sale of
the Shares to be sold hereunder by such Selling Stockholder, to make delivery of such Shares
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(whether in certificated or book-entry form), to provide instructions for the delivery of the
proceeds of the sale of such Shares, to give receipts for such proceeds, to pay therefrom the
expenses (if any) to be borne by such Selling Stockholder in connection with the sale and public
offering of the Shares, to distribute the balance of such proceeds to such Selling Stockholder, to
receive notices on behalf of such Selling Stockholder and to take such other action as may be
necessary or desirable in connection with the transactions contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm Shares shall be
made to the Custodian (as defined below) by Federal Funds wire transfer against delivery of the
Firm Shares in book-entry form to you through the facilities of The Depository Trust Company
(“DTC”) for the respective accounts of the Underwriters. Such payment and delivery shall
be made at 10:00 A.M., New York City time, on January [•], 2007 (unless another time shall be
agreed to by you and the Company and any Representative of the Selling Stockholders, or unless
postponed in accordance with the provisions of Section 11 hereof). The time at which such payment
and delivery are to be made is hereinafter sometimes called the “time of purchase.”
Electronic transfer of the Firm Shares shall be made to you at the time of purchase in such names
and in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at the applicable
additional time of purchase in the same manner and at the same office as the payment for the Firm
Shares. Electronic transfer of the Additional Shares shall be made to you at the additional time
of purchase in such names and in such denominations as you shall specify.
Deliveries of the documents described in Section 9 hereof with respect to the purchase of the
Shares shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, no later than at 9:00 A.M., New York City time, on the date of the closing of the
purchase of the Firm Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or, with
respect to any registration statement to be filed to register the offer and sale of Shares
pursuant to Rule 462(b) under the Act, will be filed with the Commission and become
effective under the Act no later than 10:00 P.M., New York City time, on the date of
determination of the public offering price for the Shares; no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or Permitted Free Writing
Prospectus, or the effectiveness of the Registration Statement, has been issued, and no
proceedings for such purpose have been instituted or, to the Company’s knowledge, are
contemplated by the Commission; the Exchange Act Registration Statement has become effective
as provided in Section 12 of the Exchange Act;
(b) the Registration Statement complied when it became effective, complies as of the
date hereof and, as then amended or supplemented, will comply at the time of purchase, each
additional time of purchase, if any, and at all times during which a prospectus is required
by the Act to be delivered (whether physically or through
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compliance with Rule 172 under the Act or any similar rule) in connection with any sale
of Shares, in all material respects, with the requirements of the Act; the Registration
Statement did not, as of the Effective Time, 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; each Preliminary Prospectus complied when it was filed
with the Commission, and, as presently amended or supplemented, complies as of the date
hereof, in all material respects with the requirements of the Act; at no time during the
period that begins on the earlier of the date of such Preliminary Prospectus and the date
such Preliminary Prospectus was filed with the Commission and ends at the time of purchase
did or will any Preliminary Prospectus, as then amended or supplemented, include an untrue
statement of a material fact or 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, and at no time during such period did or will any Preliminary Prospectus, as
then amended or supplemented, together with any combination of one or more of the then
issued Permitted Free Writing Prospectuses, if any, include an untrue statement of a
material fact or 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; the
Prospectus will comply, as of its date, the date that it is filed with the Commission and,
as then amended or supplemented, the time of purchase, each additional time of purchase, if
any, and at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any similar rule)
in connection with any sale of Shares, in all material respects, with the requirements of
the Act (including, without limitation, Section 10(a) of the Act); at no time during the
period that begins on the earlier of the date of the Prospectus and the date the Prospectus
is filed with the Commission and ends at the later of the time of purchase, the latest
additional time of purchase, if any, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of Shares did or will the
Prospectus, as then amended or supplemented, include an untrue statement of a material fact
or 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; at no time during the
period that begins on the date of such Permitted Free Writing Prospectus and ends at the
time of purchase did or will any Permitted Free Writing Prospectus include an untrue
statement of a material fact or 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; provided, however, that the Company makes no representation or
warranty in this Section 3(b) with respect to any statement contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free Writing
Prospectus in reliance upon and in conformity with information concerning an Underwriter and
furnished in writing by or on behalf of such Underwriter through you to the Company
expressly for use in the Registration Statement, such Preliminary Prospectus, the Prospectus
or such Permitted Free Writing Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Shares by means of any “prospectus” (within the meaning of
the Act) or used any “prospectus” (within the meaning of the Act) in connection with
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the offer or sale of the Shares, in each case other than the Preliminary Prospectuses
and the Permitted Free Writing Prospectuses, if any; the Company has not, directly or
indirectly, prepared, used or referred to any Permitted Free Writing Prospectus except in
compliance with Rules 164 and 433 under the Act; assuming that such Permitted Free Writing
Prospectus is accompanied or preceded by the most recent Preliminary Prospectus that
contains a price range or the Prospectus, as the case may be, and that such Permitted Free
Writing Prospectus is so sent or given after the Registration Statement was filed with the
Commission (and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy the provisions of Rule
164 and Rule 433 (without reliance on subsections (b), (c) and (d) of Rule 164); the
Preliminary Prospectus dated January [•], 2007 is a prospectus that, other than by reason of Rule 433 or Rule 431 under
the Act, satisfies the requirements of Section 10 of the Act, including a price range where
required by rule; neither the Company nor the Underwriters are disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the offer
and sale of the Shares, “free writing prospectuses” (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; the Company is not an “ineligible issuer” (as
defined in Rule 405 under the Act) as of the eligibility determination date for purposes of
Rules 164 and 433 under the Act with respect to the offering of the Shares contemplated by
the Registration Statement, other than by virtue of paragraph (1)(iv) of the definition
thereof; the staff of the Commission has informally advised that it would not object to the
use of an “electronic road show” in connection with the Offering notwithstanding the
Company’s status as an ineligible issuer by virtue of paragraph (1)(iv) of the definition
thereof; the parties hereto agree and understand that the content of any and all “road
shows” (as defined in Rule 433 under the Act) related to the offering of the Shares
contemplated hereby is solely the property of the Company; the Company is required to file
reports with the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and is not required to file
any written communication that is a roadshow with the Commission pursuant to Rule 433(d)(8);
(d) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth in the sections of the Registration Statement, the Preliminary
Prospectuses and the Prospectus entitled “Capitalization” and “Description of capital stock”
(and any similar sections or information, if any, contained in any Permitted Free Writing
Prospectus), and, as of the time of purchase and any additional time of purchase, as the
case may be, the Company shall have an authorized and outstanding capitalization as set
forth in the sections of the Registration Statement, the Preliminary Prospectuses and the
Prospectus entitled “Capitalization” and “Description of capital stock” (and any similar
sections or information, if any, contained in any Permitted Free Writing Prospectus)
(subject, in each case, to the issuance of shares of Common Stock upon exercise of stock
options and warrants disclosed as outstanding in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus and the grant of options
under existing stock option plans described in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus); all of the issued and
outstanding shares of capital stock, including
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the Common Stock, of the Company have been duly authorized and validly issued and are
fully paid and non-assessable, have been issued in compliance with all applicable securities
laws and were not issued in violation of any preemptive right, resale right, right of first
refusal or similar right;
(e) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with full corporate power and
authority to own, lease and operate its properties and conduct its business as described in
the Registration Statement, each Preliminary Prospectus, the Prospectus and each Permitted
Free Writing Prospectus, if any, and to execute and deliver this Agreement;
(f) the Company is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, either (i) have
a material adverse effect on the business, properties, financial condition, results of
operations, cash flows, management or prospects of the Company and
its subsidiaries
(as defined below) taken as a whole or (ii) prevent or materially interfere with
consummation of the transactions contemplated by this Agreement, the Registration Statement,
each Preliminary Prospectus and the Prospectus (the occurrence of any such effect or any
such prevention or interference or any such result described in the foregoing clauses (i)
and (ii) being herein referred to as a “Material Adverse Effect”);
(g) the Company
has no subsidiaries other than those identified on Schedule D-1 hereto; the Company has no “significant subsidiaries” (as defined in
Rule 1-02(w) of Regulation S-K under the Act) other than those identified on Schedule D-2
hereto (the “Subsidiaries”), provided, however, that the inclusion of a
subsidiary on Schedule D-2 is not an admission or representation by the Company that such
Subsidiary is a “significant subsidiary” as defined in Rule 1-02(w) of
Regulation S-K under the Act; except as described on Schedule D-1, the Company owns all of
the issued and outstanding capital stock or equity interests, as applicable, of each of the
Subsidiaries; other than the capital stock or equity interests, as applicable,
of the entities listed on Schedule D-1 and D-3 hereto, the Company does not own, directly or indirectly, any shares of stock
or any other equity interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity; complete and correct copies of the
charters, the bylaws and other organizational documents of the Company and each
Subsidiary and all amendments thereto have been delivered to you, and, except as set forth
in the exhibits to the Registration Statement, no changes therein will be made on or after
the date hereof through and including the time of purchase or, if later, any additional time
of purchase; each Subsidiary has been duly incorporated or formed and is validly
existing as a corporation or a limited liability company in good standing under the laws of
the jurisdiction of its incorporation or formation, with full corporate power and authority
to own, lease and operate its properties and to conduct its business as described in the
Registration Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free
Writing Prospectus, if any; each Subsidiary is duly qualified to do business as
a foreign corporation
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or foreign limited liability company and is in good standing in each jurisdiction where
the ownership or leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing would not,
individually or in the aggregate, have a Material Adverse Effect; all of the outstanding
shares of capital stock or equity interests, as applicable, of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable, have been issued in compliance with all applicable securities laws, were not
issued in violation of any preemptive right, resale right, right of first refusal or similar
right and, except as described in the Registration Statement, each Preliminary Prospectus
and the Prospectus, are not subject to any security interest, other encumbrance or adverse
claims; no options, warrants or other rights to purchase, agreements or other obligations to
issue or other rights to convert any obligation into shares of capital stock or ownership
interests in the Subsidiaries are outstanding; and except for the
Subsidiaries and the Company’s equity interest in Anglesey
Aluminium Limited (“Anglesey”), an English limited
company, none of Company’s subsidiaries or entities in which the
Company has an equity interest owns or possesses any property or assets,
or has any
obligations or liabilities, or possesses any rights (by contract, franchise, permit or
otherwise) or engages in any operations that are, individually or in the aggregate, material
to the business, properties, financial condition, results of operations, cash flows,
management or prospects of the Company and its subsidiaries taken as a whole;
(h) the Shares to be sold by the Selling Stockholders pursuant hereto have been duly
and validly authorized and issued and are fully paid, non-assessable and free of statutory
and contractual preemptive rights, resale rights, rights of first refusal and similar
rights; except as described in the Registration Statement, each Preliminary Prospectus and
the Prospectus, the Shares to be sold by the Selling Stockholders pursuant hereto are and,
after they are delivered against payment therefor as provided herein, will be free of any
restriction upon the voting or transfer thereof pursuant to the Company’s Certificate of
Incorporation or Bylaws or any agreement or other instrument to which the Company is a
party;
(i) the capital stock of the Company, including the Shares, conforms in all material
respects to each description thereof, if any, contained in the Registration Statement, each
Preliminary Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if any;
and the certificates for the Shares are in due and proper form;
(j) this Agreement has been duly authorized, executed and delivered by the Company;
(k) the agreements and documents described in the Registration Statement, each
Preliminary Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if any,
conform to the description thereof contained therein and there are no agreements or
documents required to be described in the Registration Statement, each Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus or to be filed with the
Commission as exhibits to the Registration Statement that have not been so described or
filed; and all legal and governmental proceedings, affiliate transactions and off-balance
sheet transactions of a character required to be described in the Registration Statement,
each Preliminary Prospectus, or any Permitted Free Writing Prospectus have been so
described;
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(l) neither the Company nor any of the Subsidiaries is in breach or violation of or in
default under (nor has any event occurred which, with notice, lapse of time or both, would
result in any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) (A) its
charter, bylaws or other organizational documents, (B) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound or affected, (C) any federal, state, local or foreign
law, regulation or rule, (D) any rule or regulation of any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation, the rules and
regulations of the NASDAQ), or (E) any decree, judgment or order applicable to it or any of
its properties, except, with respect to (B), (C), (D) and (E) above, for any breach,
violation or default that would not, individually or in the aggregate, have a Material
Adverse Effect;
(m) the execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event which, with notice,
lapse of time or both, would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (or result in the creation or imposition of a lien, charge or
encumbrance on any property or assets of the Company or any Subsidiary pursuant to) (A) the
charter, bylaws or other organizational documents of the Company or any of the Subsidiaries,
(B) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence
of indebtedness, or any license, lease, contract or other agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, (C) any federal, state, local or foreign
law, regulation or rule, (D) any rule or regulation of any self-regulatory organization or
other non-governmental regulatory authority (including, without limitation, the rules and
regulations of the NASDAQ), or (E) any decree, judgment or order applicable to the Company
or any of the Subsidiaries or any of their respective properties, except, with respect to
(B), (C), (D) and (E) above, for any breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse Effect;
(n) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency, or
of or with any self-regulatory organization or other non-governmental regulatory authority
(including, without limitation, the NASDAQ), or approval of the stockholders of the Company,
is required in connection with the sale of the Shares to be sold by the Selling Stockholders
pursuant hereto or the consummation of the transactions contemplated hereby, other than (i)
registration of the Shares under the Act, which has been effected (or, with respect to any
registration statement to be filed hereunder pursuant to Rule 462(b) under the Act, will be
effected in accordance herewith), (ii) any necessary qualification under the securities or
blue sky laws of the various jurisdictions in which the
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Shares are being offered by the Underwriters or (iii) under the Conduct Rules of the
NASD;
(o) except as described in the Registration Statement (excluding the exhibits thereto),
each Preliminary Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, (ii) no person has any
preemptive rights, resale rights, rights of first refusal or other rights to purchase from
the Company or, to the Company’s knowledge, from any other person any shares of Common Stock
or shares of any other capital stock of or other equity interests in the Company, (iii) no
person has the right to act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Shares and (iv) no person has the right,
contractual or otherwise, to cause the Company to register under the Act any shares of
Common Stock or shares of any other capital stock of or other equity interests in the
Company, or to include any such shares or interests in the Registration Statement or the
offering contemplated thereby;
(p) each of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary licenses, authorizations,
consents and approvals from other persons, in order to conduct their respective businesses
except where such failure to possess any such license, authorization, consent or approval or
make such filings would not, individually or in the aggregate, have a Material Adverse
Effect; neither the Company nor any of the Subsidiaries is in violation of, or in default
under, or has received notice of any proceedings relating to revocation or modification of,
any such license, authorization, consent or approval or any federal, state, local or foreign
law, regulation or rule or any decree, order or judgment applicable to the Company or any of
the Subsidiaries, except where such violation, default, revocation or modification would
not, individually or in the aggregate, have a Material Adverse Effect;
(q) except as described in the Registration Statement, each Preliminary Prospectus and
the Prospectus, there are no actions, suits, claims, investigations or proceedings pending
or, to the Company’s knowledge, threatened or contemplated to which the Company or any of
the Subsidiaries or, to the Company’s knowledge, any of their respective directors or
officers is or would be a party or of which any of their respective properties is or would
be subject at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, or before or by any
self-regulatory organization or other non-governmental regulatory authority (including,
without limitation, the NASDAQ), except any such action, suit, claim, investigation or
proceeding which, if resolved adversely to the Company or any Subsidiary, would not,
individually or in the aggregate, have a Material Adverse Effect;
(r) Deloitte & Touche LLP, whose report on the consolidated financial statements of the
Company and the Subsidiaries is included in the Registration Statement, the Preliminary
Prospectuses and the Prospectus, are independent registered public
- 10 -
accountants as required by the Act and by the rules of the Public Company Accounting
Oversight Board;
(s) the financial statements included in the Registration Statement, each Preliminary
Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if any, together with
the related notes and schedules, present fairly the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and the consolidated results of
operations, cash flows and changes in stockholders’ equity of the Company for the periods
specified and have been prepared in compliance with the requirements of the Act and Exchange
Act and in conformity with U.S. generally accepted accounting principles applied on a
consistent basis during the periods involved; all pro forma financial statements or data
included in the Registration Statement, each Preliminary Prospectus, the Prospectus and each
Permitted Free Writing Prospectus, if any, comply with the requirements of the Act and the
Exchange Act, and the assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described therein and the pro forma
adjustments have been properly applied to the historical amounts in the compilation of those
statements and data; the other financial and statistical data contained in the Registration
Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free Writing
Prospectus, if any, are accurately and fairly presented and prepared on a basis consistent
with the financial statements and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be included in the Registration
Statement, any Preliminary Prospectus or the Prospectus that are not included as required;
and all disclosures contained in the Registration Statement, each Preliminary Prospectus,
the Prospectus and each Permitted Free Writing Prospectus, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Act, to
the extent applicable;
(t) subsequent to the respective dates as of which information is given in the
Registration Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free
Writing Prospectus, if any, in each case excluding any amendments or supplements to the
foregoing made after the execution of this Agreement, there has not been (i) any material
adverse change, or any development involving a prospective material adverse change, in the
business, properties, financial condition, results of operations, cash flows, management or
prospects of the Company and the Subsidiaries taken as a whole or (ii) any dividend or
distribution of any kind declared, paid or made on the capital stock of the Company or any
Subsidiary;
(u) the Company has obtained for the benefit of the Underwriters the agreement (a
“Lock-Up Agreement”), in the form set forth as Exhibit A hereto, of (i) each
of its directors and “officers” (within the meaning of Rule 16a-1(f) under the Exchange
Act), (ii) each Selling Stockholder and (iii) each other stockholder identified on
Exhibit A-1 attached hereto (each of the parties referred to in clauses (i) through
(iii) being identified on Exhibit A-1 attached hereto);
- 11 -
(v) neither the Company nor any Subsidiary is, and at no time during which a prospectus
is required by the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of Shares will any of
them be, and, after giving effect to the offering and sale of the Shares, will any of them
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 “Investment
Company Act”);
(w) the Company and each of the Subsidiaries have good and marketable title to all
property (real and personal) described in the Registration Statement, each Preliminary
Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if any, as being
owned by any of them, free and clear of all liens, claims, security interests or other
encumbrances except as described in the Registration Statement, each Preliminary Prospectus
and the Prospectus; and all the property described in the Registration Statement, each
Preliminary Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if any,
as being held under lease by the Company or a Subsidiary is held thereby under valid,
subsisting and enforceable leases, except where the failure to have such good and marketable
title or the failure of any such lease to be valid, subsisting and enforceable would not,
individually or in the aggregate, have a Material Adverse Effect;
(x) each of the Company and the Subsidiaries owns or possesses all inventions, patent
applications, patents, trademarks (both registered and unregistered), tradenames, service
names, copyrights, trade secrets and other proprietary information described in the
Registration Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free
Writing Prospectus, if any, as being owned or licensed by it or which is necessary for the
conduct of, or material to, its businesses (collectively, the “Intellectual
Property”) except where the failure to own or possess such Intellectual Property would
not, individually or in the aggregate, have a Material Adverse Effect, and the Company is
unaware of any claim to the contrary or any challenge by any other person to the rights of
the Company or any of the Subsidiaries with respect to the Intellectual Property; neither
the Company nor any of the Subsidiaries has infringed or is infringing the intellectual
property of a third party, and neither the Company nor any Subsidiary has received notice of
a claim by a third party to the contrary;
(y) neither the Company nor any of the Subsidiaries is engaged in any unfair labor
practice; except for matters which would not, individually or in the aggregate, have a
Material Adverse Effect, (i) there is (A) no unfair labor practice complaint pending or, to
the Company’s knowledge, threatened against the Company or any of the Subsidiaries before
the National Labor Relations Board, and no grievance or arbitration proceeding arising out
of or under collective bargaining agreements is pending or, to the Company’s knowledge,
threatened, (B) no strike, labor dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the Subsidiaries and (C) no union
representation dispute currently existing concerning the employees of the Company or any of
the Subsidiaries, (ii) to the Company’s knowledge, no union organizing activities are
currently taking place concerning the employees of the Company or any of the Subsidiaries
and (iii) there has been no violation of any federal, state, local
- 12 -
or foreign law relating to discrimination in the hiring, promotion or pay of employees,
any applicable wage or hour laws or any provision of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) or the rules and regulations promulgated
thereunder concerning the employees of the Company or any of the Subsidiaries;
(z) the Company and the Subsidiaries and their respective properties, assets and
operations are in compliance with, and the Company and each of the Subsidiaries hold all
permits, authorizations and approvals required under, Environmental Laws (as defined below),
except to the extent that failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a Material Adverse Effect;
except as described in the Registration Statement, each Preliminary Prospectus and the
Prospectus, there are no past, present or, to the Company’s knowledge, reasonably
anticipated future events, conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to give rise to any material costs or
liabilities to the Company or any Subsidiary under, or to interfere with or prevent
compliance by the Company or any Subsidiary with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect, neither the Company nor
any of the Subsidiaries (i) is, to its knowledge, the subject of any investigation, (ii) has
received any notice or claim, (iii) is a party to or, to its knowledge, affected by any
pending or, to its knowledge, threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any agreement, in each case relating to
any alleged violation of any Environmental Law or any actual or alleged release or
threatened release or cleanup at any location of any Hazardous Materials (as defined below)
(as used herein, “Environmental Law” means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural resources, including those
relating to the distribution, processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of Hazardous Materials, and
“Hazardous Materials” means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is regulated by or may give rise
to liability under any Environmental Law);
(aa) in the ordinary course of their business, the Company and each of the Subsidiaries
conduct periodic reviews of the effect of the Environmental Laws on their respective
businesses, operations and properties, in the course of which they identify and evaluate
associated costs and liabilities (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance with the
Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties);
(bb) all tax returns required to be filed by the Company or any of the Subsidiaries
have been timely filed, and all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such entities
- 13 -
have been timely paid, other than those that are immaterial in amount or that are being
contested in good faith and for which adequate reserves have been provided;
(cc) the Company and each of the Subsidiaries maintain insurance covering their
respective properties, operations, personnel and businesses as the Company reasonably deems
adequate; such insurance insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice to protect the Company and the
Subsidiaries and their respective businesses; all such insurance is fully in force on the
date hereof and will be fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any Subsidiary has reason to believe that it will
not be able to renew any such insurance as and when such insurance expires;
(dd) neither the Company nor any Subsidiary has sent or received any communication
regarding termination of, or intent not to renew, any of the contracts or agreements
referred to or described in any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus, or referred to or described in, or filed as an exhibit to, the
Registration Statement, and no such termination or non-renewal has been threatened by the
Company or any Subsidiary or, to the Company’s knowledge, any other party to any such
contract or agreement;
(ee) the Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences;
(ff) the Company has established and maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and
“internal control over financial reporting” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its consolidated
subsidiaries, is made known to the Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and, except as described in the Registration
Statement, each Preliminary Prospectus and the Prospectus, such disclosure controls and
procedures are effective to perform the functions for which they were established; the
Company’s independent auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (i) all significant deficiencies, if any, in the design or
operation of internal controls which could adversely affect the Company’s ability to record,
process, summarize and report financial data; and (ii) all fraud, if any, whether or not
material, that involves management or other employees who have a role in the Company’s
internal controls; all material weaknesses, if any, in internal controls have been
identified to the Company’s independent auditors;
- 14 -
since the date of the most recent evaluation of such disclosure controls and procedures
and internal controls, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material weaknesses; and the Company has
taken all necessary actions to ensure that, upon and at all times after the filing of the
Registration Statement, the Company and the Subsidiaries and their respective officers and
directors, in their capacities as such, will be in compliance in all material respects with
the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”) and the rules and regulations promulgated thereunder at such times as such
provisions, rules and regulations become applicable to the Company;
(gg) each “forward-looking statement” (within the meaning of Section 27A of the Act or
Section 21E of the Exchange Act) contained in the Registration Statement, each Preliminary
Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if any, has been made
or reaffirmed with a reasonable basis and in good faith;
(hh) all statistical or market-related data included in the Registration Statement,
each Preliminary Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if
any, are based on or derived from sources that the Company reasonably believes to be
reliable and accurate, and the Company has obtained the written consent to the use of such
data from such sources to the extent required;
(ii) except as described in the Registration Statement, each Preliminary Prospectus and
the Prospectus, no Subsidiary is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such Subsidiary’s
capital stock, from repaying to the Company any loans or advances to such Subsidiary from
the Company or from transferring any of such Subsidiary’s property or assets to the Company
or any other Subsidiary of the Company;
(jj) neither the Company nor any of the Subsidiaries has incurred any liability for any
finder’s or broker’s fee or agent’s commission in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby or by the
Registration Statement;
(kk) neither the Company nor any of the Subsidiaries nor any of their respective
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares; and
(ll) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder (the “Foreign Corrupt Practices Act”); and the
Company, the Subsidiaries and, to the knowledge of the Company, its affiliates
- 15 -
have instituted and maintain policies and procedures designed to ensure continued
compliance therewith;
(mm) the operations of the Company and the Subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”);
and no action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator or non-governmental authority involving the Company or any of the
Subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s
knowledge, threatened;
(nn) neither the Company nor any of the Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and
(oo) the Second Amended Joint Plan of Reorganization, as modified, under Chapter 11 of
the Bankruptcy Code (the “Plan of Reorganization”) of the Company, ▇▇▇▇▇▇ Aluminum &
Chemical Corporation and certain of their affiliates (collectively, the “Reorganizing
Debtors”) was confirmed by the order of the United States Bankruptcy Court for the
District of Delaware entered on February 6, 2006 (the “Confirmation Order”). The
District Court for the District of Delaware entered an order affirming the Confirmation
Order on May 11, 2006; although certain parties appealed the District Court’s order
affirming the Confirmation Order, each of those appeals has been dismissed. The Effective
Date, as that term is defined in the Plan of Reorganization, was achieved on July 6, 2006.
Except as provided in the Plan of Reorganization, the Confirmation Order or the
Environmental Settlement Agreement, the Reorganizing Debtors have been discharged from all
Claims (as defined in the Plan of Reorganization) that arose on or before such Effective
Date.
(pp) As of the applicable dates indicated in Section 3(b), the statements
in the Registration Statement, each Preliminary Prospectus and the Prospectus contain all
statements concerning Anglesey and its business and operations required by the Act, and such
statements do not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make such statements, in the light of the circumstances under
which they were made, not misleading.
(qq) To the knowledge of the Company, Anglesey is duly organized and
validly existing under the laws of England. To the knowledge of the Company, the execution
delivery and performance of this Agreement and the consummation of the transactions
contemplated hereby will not (i) conflict with the charter, bylaws or other organizational
documents of Anglesey, and (ii) will not result in any breach or violation of, or constitute
a default under, the Anglesey Aluminium Shareholders’ Agreement by and among Rio Tinto
Aluminium Holdings Limited (“RITZAH”), ▇▇▇▇▇▇ Aluminum & Chemical International Company and
Anglesey, dated December 12, 1977, as amended by the First Supplemental Agreement thereto by
and among RITZAH, ▇▇▇▇▇▇ Aluminium Europe Incorporated and Anglesey, dated December 29,
1987, as amended by the Second Supplemental Agreement thereto by and among ▇▇▇▇▇▇ Aluminium
Europe Incorporated, ▇▇▇▇▇▇ Aluminum & Chemical Corporation, RITZAH and Anglesey, dated
November 6, 1987.
(rr) ▇▇▇▇▇▇ Aluminum Investments Company, a wholly-owned subsidiary of the
Company, has good and valid title to 12,862,500 ordinary shares, par value of £1 per share
of Anglesey (the “Anglesey Shares”), free and clear of all liens, except liens described in
the Registration Statement (including the exhibits thereto), each Preliminary
Prospectus and the Prospectus. To the knowledge of the Company, (i) as of the date hereof,
the authorized capital stock of Anglesey consists of 26,250,000 ordinary shares, par value
of £1 per share, (ii) all of such shares have been issued and are outstanding, fully paid
and non-assessable, and (iii) there are no outstanding subscriptions, options, rights,
warrants, convertible securities or other agreements or commitments obligating Anglesey to
issue any additional shares of capital stock of any class or any other securities of any
kind.
In addition, any certificate signed by any officer of the Company or any of the Subsidiaries
and delivered to the Underwriters or counsel for the Underwriters in connection with the offering
of the Shares shall be deemed to be a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
4. Representations
and Warranties of the Selling Stockholders. (a) Each Selling
Stockholder (excluding the VEBA Trust) severally and not jointly with the other Selling
Stockholders, represents and warrants to each of the Underwriters that:
(i) all information provided in writing by such Selling Stockholder expressly
for inclusion in the Registration Statement, any Preliminary Prospectus or the
Prospectus complied and will comply with all applicable provisions of the Act; the
Registration Statement, as it relates to such Selling Stockholder, did not,
- 16 -
as of the Effective Time, 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; at no time during the period that begins on the
earlier of the date of such Preliminary Prospectus and the date such Preliminary
Prospectus was filed with the Commission and ends at the time of purchase did or
will any Preliminary Prospectus, as then amended or supplemented, as such
Preliminary Prospectus relates to such Selling Stockholder, include an untrue
statement of a material fact or 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, and at no time during such period did or will any Preliminary
Prospectus, as then amended or supplemented, together with any combination of one or
more of the then issued Permitted Free Writing Prospectuses, if any, in each case as
they relate to such Selling Stockholder, include an untrue statement of a material
fact or 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; at no time during the period that begins on the earlier of the date of
the Prospectus and the date the Prospectus is filed with the Commission and ends at
the later of the time of purchase, the latest additional time of purchase, if any,
and the end of the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or
any similar rule) in connection with any sale of Shares did or will the Prospectus,
as then amended or supplemented, as the Prospectus relates to such Selling
Stockholder, include an untrue statement of a material fact or 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; at no time during the
period that begins on the date of such Permitted Free Writing Prospectus and ends at
the time of purchase did or will any Permitted Free Writing Prospectus, as such
Permitted Free Writing Prospectus relates to such Selling Stockholder, include an
untrue statement of a material fact or 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, provided that the representations and
warranties set forth in this paragraph 4(a)(i) are limited to statements or
omissions made in reliance upon information relating to such Selling Stockholder
furnished to the Company in writing by such Selling Stockholder expressly for use in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
Permitted Free Writing Prospectus or any amendments or supplements thereto, as the
case may be;
(ii) such Selling Stockholder has not, prior to the execution of this
Agreement, offered or sold any Shares by means of any “prospectus” (within the
meaning of the Act), or used any “prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other than the then
most recent Preliminary Prospectus;
(iii) neither the execution, delivery and performance of this Agreement or the
Custody Agreement (as defined below) or Power of Attorney to which such
- 17 -
Selling Stockholder is a party nor the sale by such Selling Stockholder of the
Shares to be sold by such Selling Stockholder pursuant to this Agreement nor the
consummation of the transactions contemplated hereby or thereby will conflict with,
result in any breach or violation of or constitute a default under (or constitute
any event which with notice, lapse of time or both would result in any breach or
violation of or constitute a default under) (A) if such Selling Stockholder is not
an individual, the charter or bylaws or other organizational documents of such
Selling Stockholder, (B) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which such Selling Stockholder is a party or by
which such Selling Stockholder or any of its properties may be bound or affected,
(C) any federal, state, local or foreign law, regulation or rule, (D) or any rule or
regulation of any self-regulatory organization or other non-governmental regulatory
authority (including, without limitation, the rules and regulations of the NASDAQ),
or (E) any decree, judgment or order applicable to such Selling Stockholder or any
of its properties;
(iv) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the NASDAQ),
is required in connection with the sale of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement or the consummation by such Selling
Stockholder of the transactions contemplated hereby or by the Custody Agreement or
Power of Attorney to which such Selling Stockholder is a party other than (A)
registration of the Shares under the Act, which has been effected (or, with respect
to any registration statement to be filed hereunder pursuant to Rule 462(b) under
the Act, will be effected in accordance herewith), (B) any necessary qualification
under the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or (C) under the Conduct Rules of the
NASD;
(v) neither such Selling Stockholder nor any of its affiliates has taken,
directly or indirectly, any action designed to, or which has constituted or might
reasonably be expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares;
(vi) such Selling Stockholder now is and, at the time of delivery of such
Shares, will be the lawful owner of the number of Shares to be sold by such Selling
Stockholder pursuant to this Agreement and has and, at the time of delivery of such
Shares, will have valid and marketable title to such Shares, and upon delivery of
and payment for such Shares, the Underwriters will acquire valid and marketable
title to such Shares free and clear of any claim, lien, encumbrance, security
interest, community property right, restriction on transfer (except as described in
the Registration Statement, each Preliminary Prospectus and the Prospectus, or other
defect in title;
- 18 -
(vii) such Selling Stockholder has and, at the time of delivery of the Shares
to be sold by such Selling Stockholder pursuant to this Agreement, will have full
legal right, power and capacity, and all authorizations and approvals required by
law (other than those imposed by the Act and state securities or blue sky laws), to
(A) enter into this Agreement and a Custody Agreement and to execute a Power of
Attorney, (B) sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder pursuant to this Agreement in the manner provided in this
Agreement and (C) make the representations, warranties and agreements made by such
Selling Stockholder herein;
(viii) this Agreement and the custody agreement (the “Custody Agreement”),
effective as of January 8, 2007 between Mellon Investor Services LLC, as custodian
(the “Custodian”), and such Selling Stockholder and the Power of Attorney to which
such Selling Stockholder is a party have each been duly executed and delivered by
(or, in the case of this Agreement, on behalf of) such Selling Stockholder, and each
is a legal, valid and binding agreement of such Selling Stockholder enforceable in
accordance with its terms;
(ix) such Selling Stockholder has duly and irrevocably authorized each of the
Representatives of the Selling Stockholders (whether acting alone or together), on
behalf of such Selling Stockholder, to execute and deliver this Agreement and any
other documents necessary or desirable in connection with the transactions
contemplated hereby or thereby and to deliver the Shares to be sold by such Selling
Stockholder pursuant to this Agreement and receive payment therefor pursuant hereto;
(x) the sale of the Shares to be sold by such Selling Stockholder pursuant to
this Agreement is not prompted by any information concerning the Company or any
Subsidiary which is not set forth in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus; such Selling
Stockholder has no knowledge of any material adverse information with regard to the
Company or the Subsidiaries which is not disclosed in such documents; and neither
such Selling Stockholder (or, if such Selling Stockholder is a trust, to such
Selling Stockholder’s knowledge, any beneficiary thereof, or, if such Selling
Stockholder is an estate, partnership or corporation, any beneficiary, partner or
other equity owner thereof) nor any immediate family member of such Selling
Stockholder (or any such beneficiary, partner or other equity owner) is a director,
officer or employee of or consultant to the Company or any of its Subsidiaries;
(xi) at the time of purchase, all stock transfer or other taxes (other than
income taxes), if any, that are required to be paid in connection with the sale and
transfer of the Shares to be sold by such Selling Stockholder to the several
Underwriters hereunder will be fully paid or provided for by such Selling
Stockholder, and all laws imposing such taxes will be fully complied with;
(xii) pursuant to the Custody Agreement to which such Selling
- 19 -
Stockholder is a party, certificates in negotiable form or security
entitlements in book-entry form for the Shares to be sold by such Selling
Stockholder pursuant to this Agreement have been placed in custody for the purpose
of making delivery of such Shares in accordance with this Agreement; such Selling
Stockholder agrees that (A) such Shares represented by such certificates or security
entitlements are for the benefit of, and coupled with and subject to the interest
of, the Custodian, the Representatives of the Selling Stockholders, the
Underwriters, the Company, and the Selling Stockholders, (B) the arrangements made
by such Selling Stockholder for custody and for the appointment of the Custodian and
the Representatives of the Selling Stockholders by such Selling Stockholder are
irrevocable, and (C) the obligations of such Selling Stockholder hereunder shall not
be terminated by any act of such Selling Stockholder or by operation of law, whether
by the death, disability or incapacity of such Selling Stockholder or by the
occurrence of any other event or events (including, without limitation, the
termination of any trust or estate for which the Selling Stockholder is acting as a
fiduciary or fiduciaries, the death or incapacity of one or more trustees,
guardians, executors or administrators under such trust or estate or the bankruptcy,
liquidation, dissolution, merger or consolidation of such Selling Stockholder, if
the Selling Stockholder is a corporation, partnership, limited liability company or
other similar entity) (any of the foregoing being hereinafter referred to as an
“Event”); if an Event occurs before the delivery of the Shares hereunder,
certificates (either certificated or book-entry form) for the Shares shall be
delivered by the Custodian in accordance with the terms and conditions of the Power
of Attorney to which such Selling Stockholder is a party, the Custody Agreement to
which such Selling Stockholder is a party and this Agreement, and actions taken by
the Custodian and the Representatives of the Selling Stockholders pursuant to such
Power or Attorney or such Custody Agreement shall be as valid as if such Event had
not occurred, regardless of whether or not the Custodian or the Representatives of
the Selling Stockholders, or either of them, shall have received notice thereof; and
(xiii) the representations and warranties of such Selling Stockholder in its
Custody Agreement and Power of Attorney are, and at the time of purchase and any
additional time of purchase, as the case may be, will be, true and correct.
(b) The VEBA Trust represents and warrants to each of the Underwriters that:
(i) all information provided in writing by the VEBA Trust expressly for
inclusion in the Registration Statement, any Preliminary Prospectus or the
Prospectus complied and will comply with all applicable provisions of the Act; the
Registration Statement, as it relates to the VEBA Trust, did not, as of the
Effective Time, 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; at no time during the period that begins on the earlier of
the date of such Preliminary Prospectus and the date such Preliminary Prospectus was
filed with the Commission and ends at the time of purchase did or will any
Preliminary Prospectus, as then amended or supplemented, as such Preliminary
- 20 -
Prospectus relates to the VEBA Trust, include an untrue statement of a material
fact or 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, and at no time during such period did or will any Preliminary
Prospectus, as then amended or supplemented, together with any combination of one or
more of the then issued Permitted Free Writing Prospectuses, if any, in each case as
they relate to the VEBA Trust, include an untrue statement of a material fact or
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; at no
time during the period that begins on the earlier of the date of the Prospectus and
the date the Prospectus is filed with the Commission and ends at the later of the
time of purchase, the latest additional time of purchase, if any, and the end of the
period during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares did or will the Prospectus, as then amended or
supplemented, as the Prospectus relates to the VEBA Trust, include an untrue
statement of a material fact or 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; at no time during the period that begins on the date of such
Permitted Free Writing Prospectus and ends at the time of purchase did or will any
Permitted Free Writing Prospectus, as such Permitted Free Writing Prospectus relates
to the VEBA Trust, include an untrue statement of a material fact or 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, provided that the
representations and warranties set forth in this paragraph 4(b)(i) are limited to
statements or omissions made in reliance upon information relating to the VEBA Trust
furnished to the Company in writing by the VEBA Trust expressly for use in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any Permitted
Free Writing Prospectus or any amendments or supplements thereto, as the case may
be;
(ii) the VEBA Trust has not, prior to the execution of this Agreement, offered
or sold any Shares by means of any “prospectus” (within the meaning of the Act), or
used any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the then most recent Preliminary
Prospectus;
(iii) neither the execution, delivery and performance of this Agreement nor the
sale by the VEBA Trust of the Shares to be sold by the VEBA Trust pursuant to this
Agreement nor the consummation of the transactions contemplated hereby will conflict
with, result in any breach or violation of or constitute a default under (or
constitute any event which with notice, lapse of time or both would result in any
breach or violation of or constitute a default under) (A) the organizational
documents of the VEBA Trust, (B) any indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any license, lease,
contract or other agreement or instrument to which the VEBA Trust is a party or by
which the VEBA Trust or any of its
- 21 -
properties may be bound or affected, (C) any federal, state, local or foreign
law, regulation or rule, (D) or any rule or regulation of any self-regulatory
organization or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NASDAQ), or (E) any decree, judgment or
order applicable to the VEBA Trust or any of its properties;
(iv) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority (including, without limitation, the NASDAQ),
is required in connection with the sale of the Shares to be sold by the VEBA Trust
pursuant to this Agreement or the consummation by the VEBA Trust of the transactions
contemplated hereby other than (A) registration of the Shares under the Act, which
has been effected (or, with respect to any registration statement to be filed
hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance
herewith), (B) any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the Underwriters
or (C) under the Conduct Rules of the NASD;
(v) neither the VEBA Trust nor any of its affiliates has taken, directly or
indirectly, any action designed to, or which has constituted or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(vi) the VEBA Trust now is and, at the time of delivery of such Shares (whether
at the time of purchase or any additional time of purchase, as the case may be),
will be the lawful owner of the number of Shares to be sold by the VEBA Trust
pursuant to this Agreement and has and, at the time of delivery of such Shares, will
have valid and marketable title to such Shares, and upon delivery of and payment for
such Shares (whether at the time of purchase or any additional time of purchase, as
the case may be), the Underwriters will acquire valid and marketable title to such
Shares free and clear of any claim, lien, encumbrance, security interest, community
property right, restriction on transfer (except as described in the Registration
Statement, each Preliminary Prospectus and the Prospectus), or other defect in
title;
(vii) the VEBA Trust has and, at the time of delivery of the Shares to be sold
by the VEBA Trust pursuant to this Agreement (whether at the time of purchase or any
additional time of purchase, as the case may be), will have full legal right, power
and capacity, and all authorizations and approvals required by law (other than those
imposed by the Act and state securities or blue sky laws), to (A) enter into this
Agreement, (B) sell, assign, transfer and deliver the Shares to be sold by the VEBA
Trust pursuant to this Agreement in the manner provided in this Agreement and (C)
make the representations, warranties and agreements made by the VEBA Trust herein;
(viii) this Agreement has been duly executed and delivered by the
- 22 -
VEBA Trust and is a legal, valid and binding agreement of the VEBA Trust
enforceable in accordance with its terms;
(ix) the sale of the Shares to be sold by the VEBA Trust pursuant to this
Agreement is not prompted by any information concerning the Company or any
Subsidiary which is not set forth in the Registration Statement (excluding the
exhibits thereto), each Preliminary Prospectus and the Prospectus; the VEBA Trust
has no knowledge of any material adverse information with regard to the Company or
the Subsidiaries which is not disclosed in such documents; and to the VEBA
Trust’s knowledge, no beneficiary thereof nor any immediate family member of
any such beneficiary is a director or executive officer of the
Company;
(x) at the time of purchase and each additional time of purchase, all stock
transfer or other taxes (other than income taxes), if any, that are required to be
paid in connection with the sale and transfer of the Shares to be sold by the VEBA
Trust to the several Underwriters hereunder will be fully paid or provided for by
the VEBA Trust, and all laws imposing such taxes will be fully complied with;
(xi) National City Bank, as trustee under the VEBA Trust (the “VEBA
Trustee”), is duly authorized to execute and deliver this Agreement on behalf of
the VEBA Trust and to cause the VEBA Trust to perform its obligations hereunder and
to consummate the transactions contemplated hereby, and Independent Fiduciary
Services, Inc., in its capacity as independent fiduciary of the retiree health plan
known as “VEBA for Retirees of ▇▇▇▇▇▇ Aluminum” (the “Retiree Plan”), with
respect to the Common Stock owned by the VEBA Trust as of the date hereof, has duly
assented to and acknowledged this Agreement;
(xii) the VEBA Trust has been duly constituted in accordance with valid and
binding trust agreements and instruments and is validly existing.
Each of the VEBA
Trust and the Retiree Plan has been administered in form and in operation in compliance
with all requirements of law and regulation applicable thereto and, to the knowledge
of the VEBA Trust, no event has occurred which will or could cause the VEBA Trust to
lose its exemption from federal income taxation under Section 501(c)(9) of the U.S.
Internal Revenue Code of 1986, as amended (the “Code”); and
(xiii) the duly appointed “investment manager” (as such term is defined in
Section 3(38) of ERISA) of the VEBA Trust, with respect to all
discretionary actions regarding the management or disposition of any
of the Shares, has found and concluded that the execution
of this Agreement by the VEBA Trust and that the VEBA Trust’s entering into the
transactions contemplated by this Agreement are consistent with the investment
manager’s fiduciary responsibility under ERISA and that such contemplated
transactions are not prohibited transactions within the meaning of ERISA, or, if
prohibited, are exempt under an applicable class or individual exemption. None of
the Underwriters nor any person or entity affiliated with them is a “fiduciary” (as
such term is defined in Section 3(21) of ERISA) of the VEBA
- 23 -
Trust or a “named fiduciary” (as such term is defined in Section 402(a)(2) of
ERISA) of the VEBA Trust.
In addition, any certificate signed by any Selling Stockholder (or, with respect to any
Selling Stockholder that is not an individual, any officer of such Selling Stockholder or of any of
such Selling Stockholder’s subsidiaries) or by any Representative of the Selling Stockholders and
delivered to the Underwriters or counsel for the Underwriters in connection with the offering of
the Shares shall be deemed to be a representation and warranty by such Selling Stockholder, as to
matters covered thereby, to each Underwriter.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or blue sky laws of such
states or other jurisdictions as you may designate and to maintain such qualifications in
effect so long as you may request for the distribution of the Shares; provided,
however, that the Company shall not be required to qualify as a foreign corporation,
subject itself to foreign taxation, or to consent to the service of process under the laws
of any such jurisdiction (except service of process with respect to the offering and sale of
the Shares); and to promptly advise you of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for offer or sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon as practicable
after this Agreement becomes effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act; in case any Underwriter is required to deliver (whether
physically or through compliance with Rule 172 under the Act or any similar rule), in
connection with the sale of the Shares, a prospectus after the nine-month period referred to
in Section 10(a)(3) of the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a Registration
Statement under Rule 462(b) under the Act, to be filed with the Commission and become
effective before the Shares may be sold, the Company will use its best efforts to cause such
post-effective amendment or such Registration Statement to be filed and become effective,
and will pay any applicable fees in accordance with the Act, as promptly as practicable; and
the Company will advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when such post-effective amendment or such Registration Statement has become
effective, and (ii) if Rule 430A under the Act is used,
- 24 -
when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act
(which the Company agrees to file in a timely manner in accordance with such Rules);
(d) to advise you promptly, and if requested by you, to confirm such advice in writing,
of any request by the Commission for amendments or supplements to the Registration Statement
or the Exchange Act Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Prospectus or for additional information with respect thereto, or
of notice of institution of proceedings for, or the entry of a stop order, suspending the
effectiveness of the Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to advise you promptly of
any proposal to amend or supplement the Registration Statement or the Exchange Act
Registration Statement, any Preliminary Prospectus or the Prospectus, and to provide you and
Underwriters’ counsel copies of any such documents for review and comment a reasonable
amount of time prior to any proposed filing and to file no such amendment or supplement to
which you shall reasonably object in writing;
(e) to file promptly all reports and documents and any preliminary or definitive proxy
or information statement required to be filed by the Company with the Commission in order to
comply with the Exchange Act for so long as a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares; and to provide you with a copy of such
reports and statements and other documents to be filed prior to the time of purchase by the
Company pursuant to Section 13, 14 or 15(d) of the Exchange Act a reasonable amount of time
prior to any proposed filing, and to file no such report, statement or document to which you
shall have reasonably objected in writing; and to promptly notify you of such filing;
(f) to advise the Underwriters promptly of the happening of any event within the period
during which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in connection with any
sale of Shares, which event could require, in the case of an event that occurs prior to the
availability of the Prospectus, the making of any change in the Disclosure Package then
being used or, in the case of an event that occurs when the Prospectus is available, the
making of any change in the Prospectus then being used so that such Disclosure Package or
Prospectus, as applicable, would not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading, and to advise the Underwriters
promptly if, during such period, it shall become necessary to amend or supplement such
Disclosure Package or Prospectus, as applicable, to cause such Disclosure Package or
Prospectus, as applicable, to comply with the requirements of the Act, and, in each case,
during such time, to prepare and furnish, at the Company’s expense, to the Underwriters
promptly such amendments or supplements to such Disclosure Package or Prospectus as may be
necessary to reflect any such change or to effect such compliance;
- 25 -
(g) to make generally available to its security holders, and to deliver to you, unless
such document is publicly available on the Commission’s website through the Electronic Data
Gathering and Retrieval System (“▇▇▇▇▇”), an earnings statement of the Company
(which will satisfy the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as defined in Rule
158(c) under the Act) as soon as is reasonably practicable after the termination of such
twelve-month period but in any case not later than the first date by which the Company is
required to file with the Commission a Quarterly Report on Form 10-Q or Annual Report on
Form 10-K that is required to include financial statements covering a period that includes
the last month of such twelve-month period;
(h) to furnish to you five copies of the Registration Statement, as initially filed
with the Commission, and of all amendments thereto (including all exhibits thereto) and
sufficient copies of the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(i) to furnish to you as early as reasonably practicable prior to the time of purchase
and any additional time of purchase, as the case may be, but not later than two business
days prior thereto, a copy of the latest available unaudited interim and monthly
consolidated financial statements, if any, of the Company and the Subsidiaries which have
been read by the Company’s independent registered public accountants, as stated in their
letter to be furnished pursuant to Section 9(c) hereof;
(j) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b) under the
Act) and with Rule 433(g) under the Act;
(k) beginning on the date hereof and ending on, and including, the date that is 180
days after the date of the Prospectus (the “Lock-Up Period”), without the prior
written consent of the Managing Underwriters, not to (i) issue, sell, offer to sell,
contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, with respect to, any Common Stock or any other securities of the
Company that are substantially similar to Common Stock, or any securities convertible into
or exchangeable or exercisable for, or any warrants or other rights to purchase, the
foregoing, (ii) file or cause to become effective a registration statement under the Act
relating to the offer and sale of any Common Stock or any other securities of the Company
that are substantially similar to Common Stock, or any securities convertible into or
exchangeable or exercisable for, or any warrants or other rights to purchase, the foregoing,
(iii) enter into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock or any other securities
of the Company that are substantially similar to Common Stock, or any securities convertible
into or exchangeable or exercisable for, or any warrants or other rights to purchase, the
foregoing, whether any such transaction is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise or (iv) publicly announce an intention to effect any
transaction specified in clause (i), (ii) or (iii), except,
- 26 -
in each case, for (A) the registration of the offer and sale of the Shares as
contemplated by this Agreement, (B) issuances of Common Stock upon the exercise of options
or warrants disclosed as outstanding in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus and the filing of one or more
registration statements on Form S-8 relating to employee benefit plans of the Company, and
(C) the issuance of employee stock options not exercisable, and restricted stock that does
not vest, during the Lock-Up Period pursuant to stock option plans described in the
Registration Statement (excluding the exhibits thereto), each Preliminary Prospectus and the
Prospectus; provided, however, that if (a) during the period that begins on
the date that is fifteen (15) calendar days plus three (3) business days before the last day
of the Lock-Up Period and ends on the last day of the Lock-Up Period, the Company issues an
earnings release or material news or a material event relating to the Company occurs; or (b)
prior to the expiration of the Lock-Up Period, the Company announces that it will release
earnings results during the sixteen (16) day period beginning on the last day of the Lock-Up
Period, then the restrictions imposed by this Section 5(k) shall continue to apply until the
expiration of the date that is fifteen (15) calendar days plus three (3) business days after
the date on which the issuance of the earnings release or the material news or material
event occurs;
(l) prior to the time of purchase, to issue no press release or other communication
directly or indirectly and hold no press conferences with respect to the Company or any
Subsidiary, the financial condition, results of operations, business, properties, assets, or
liabilities of the Company or any Subsidiary, or the offering of the Shares, without your
prior consent (such consent not to be unreasonably withheld);
(m) not, at any time at or after the execution of this Agreement, to, directly or
indirectly, offer or sell any Shares by means of any “prospectus” (within the meaning of the
Act), or use any “prospectus” (within the meaning of the Act) in connection with the offer
or sale of the Shares, in each case other than the Prospectus;
(n) not to, and to cause the Subsidiaries not to, take, directly or indirectly, any
action designed, or which will constitute, or has constituted, or might reasonably be
expected to cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(o) to use its best efforts to maintain the listing of the Common Stock, including the
Shares, on the NASDAQ and to maintain such listing for so long as a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule 172 under the
Act or any similar rule) in connection with the sale of the Shares;
(p) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and
(q) to the extent not otherwise available on ▇▇▇▇▇ and upon request in writing, to
furnish promptly to you and to each of the other Underwriters for a period of five years
from the date of this Agreement (i) copies of any reports or other
- 27 -
communications that the Company shall send to its stockholders or shall from time to
time publish or publicly disseminate and (ii) copies of all annual, transition, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission.
6. Certain Covenants of the Selling Stockholders. Each Selling Stockholder (including
the VEBA Trust) hereby agrees:
(a) not, at any time at or after the execution of this Agreement, to offer or sell any
Shares by means of any “prospectus” (within the meaning of the Act), or use any “prospectus”
(within the meaning of the Act) in connection with the offer or sale of the Shares, in each
case other than the Prospectus;
(b) not to take, directly or indirectly, any action designed, or which will constitute,
or has constituted, or might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate the sale or resale
of the Shares;
(c) to pay or cause to be paid all taxes, if any, on the transfer and sale of the
Shares being sold by such Selling Stockholder;
(d) to advise the Company and you promptly, and if requested by you, confirm such
advice in writing, so long as a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, of (i) any change in information in the Registration
Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free Writing
Prospectus, if any, relating to such Selling Stockholder and (ii) any new material
information relating to the Company or relating to any matter stated in the Registration
Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free Writing
Prospectus, if any, which comes to the attention of such Selling Stockholder;
(e) prior to or concurrently with the execution and delivery of this Agreement, to
execute and deliver to the Underwriters a Lock-Up Agreement, and, in the case of each
Selling Stockholder excluding the VEBA Trust, a Power of Attorney and Custody Agreement; and
(f) to deliver to you prior to or at the time of purchase a properly completed and
executed United States Treasury Department Form W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
7. Covenant to Pay Costs. (a) The Company agrees to pay all costs, expenses, fees and
taxes in connection with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, each Permitted Free Writing Prospectus and any amendments
or supplements thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment), (ii) the producing, word
processing and/or printing of this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorney and Custody Agreements and any closing documents
- 28 -
(including compilations thereof) and the reproduction and/or printing and furnishing of copies
of each thereof to the Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iii) the qualification of the Shares for offering and sale under state or
foreign laws and the determination of their eligibility for investment under state or foreign law
(including the reasonable legal fees and filing fees and other disbursements of counsel for the
Underwriters incurred in connection with such qualifications and determinations) and the printing
and furnishing of copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (iv) any listing of the Shares on any securities exchange or qualification of the
Shares for quotation on the NASDAQ and any registration thereof under the Exchange Act, (v) any
filing for review of the public offering of the Shares by the NASD, including the reasonable legal
fees and filing fees and other disbursements of counsel to the Underwriters relating to NASD
matters, (vi) the fees and disbursements of any transfer agent or registrar for the Shares and the
fees and disbursements of any Custodian, (vii) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with
the marketing of the offering and sale of the Shares to prospective investors and the Underwriters’
sales forces, including, without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers of the Company
and any such consultants engaged with the Company’s prior consent, not to
be unreasonably withheld, and the cost of any aircraft chartered in connection with the road show,
(viii) the costs and expenses of qualifying the Shares for inclusion in the book-entry settlement
system of the DTC, and (ix) the performance of the Company’s and such Selling Stockholder’s other
obligations hereunder.
(b) Each Selling Stockholder agrees to pay all costs, expenses, fees and taxes in
connection with the registration, transfer, sale and delivery of the Shares sold by such
Selling Stockholder hereunder, including any stock or transfer taxes and stamp or similar
duties payable upon the sale, transfer or delivery of such Shares to the Underwriters except
to the extent that the Company is obligated to make such payments.
8. [Intentionally
left blank.]
9. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the respective representations and warranties
on the part of the Company and each Selling Stockholder on the date hereof, at the time of purchase
and, if applicable, at the additional time of purchase, the performance by the Company and each
Selling Stockholder of each of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if applicable, at the
additional time of purchase, an opinion of ▇▇▇▇▇ Day, counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional
- 29 -
time of purchase, as the case may be, with reproduced copies for each of the other
Underwriters, and in form and substance satisfactory to the Managing Underwriters, in the
form set forth in Exhibit B hereto.
(b) (i) The VEBA Trust shall furnish to you at the time of purchase and, if applicable,
at the additional time of purchase, an opinion of each of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
counsel for the VEBA Trust, and [•], Pennsylvania counsel for the VEBA Trust, addressed to
the Managing Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with executed copies for each of the other Underwriters, and
in form and substance satisfactory to the Managing Underwriters, in the applicable form set
forth in Exhibit C-1 and C-2 hereto; and (ii) each of the other Selling Stockholders
shall furnish to you at the time of purchase, an opinion of counsel of such Selling
Stockholder, addressed to the Managing Underwriter, and dated the time of purchase or the
additional time of purchase, as the case may be, with executed copies for each of the other
Underwriters, and in form and substance satisfactory to the Managing Underwriters, in the
applicable forms set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, C-9 and C-10
hereto.
(c) You shall have received from Deloitte & Touche LLP letters dated, respectively, the
date of this Agreement, the date of the Prospectus, the time of purchase and, if applicable,
the additional time of purchase, and addressed to the Underwriters (with executed copies for
each of the Underwriters) in the forms satisfactory to the Managing Underwriters, which
letters shall cover, without limitation, the various financial disclosures contained in the
Registration Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free
Writing Prospectus, if any.
(d) You shall have received at the time of purchase and, if applicable, at the
additional time of purchase, the favorable opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated the time of purchase or the additional time of purchase, as the case may
be, in form and substance reasonably satisfactory to the Managing Underwriters.
(e) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus to which you shall have objected in writing shall be filed.
(f) The Registration Statement, the Exchange Act Registration Statement and any
registration statement required to be filed, prior to the sale of the Shares, under the Act
pursuant to Rule 462(b) shall have been filed and shall have become effective under the Act
or the Exchange Act, as the case may be. If Rule 430A under the Act is used, the Prospectus
shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before
5:30 P.M., New York City time, on the second full business day after the date of this
Agreement (or such earlier time as may be required under the Act).
(g) Prior to and at the time of purchase, and, if applicable, the additional time of
purchase, (i) no stop order with respect to the effectiveness of the Registration Statement
shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement, as then amended or supplemented,
- 30 -
shall 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) none of the Preliminary Prospectuses or the Prospectus, in either case as
then amended or supplemented, shall include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading; (iv) no Disclosure Package, as
then amended or supplemented, shall include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading; and (v) none of the Permitted
Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(h) The Company will, at the time of purchase and, if applicable, at the additional
time of purchase, deliver to you a certificate of its Chief Executive Officer and its Chief
Financial Officer, dated the time of purchase or the additional time of purchase, as the
case may be, in the form attached as Exhibit D hereto.
(i) The Selling Stockholders (with the exception of the VEBA Trust) will, at the time
of purchase, deliver to you a certificate signed by a Representative of the Selling
Stockholders, dated the time of purchase, in the form attached as Exhibit E hereto;
and the VEBA Trust will, at the time of purchase, and, if applicable, at the additional time
of purchase, deliver to you a certificate signed by an authorized representative of the VEBA
Trust, dated the time of purchase or the additional time of purchase, as the case may be, in
the form attached as Exhibit F hereto.
(j) You shall have received each of the signed Lock-Up Agreements referred to in
Section 3(u) hereof, and each such Lock-Up Agreement shall be in full force and effect at
the time of purchase and the additional time of purchase, as the case may be.
(k) The Company and each Selling Stockholder shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any statement in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus as of the time of purchase and, if applicable, the additional time of
purchase, as you may reasonably request, and with respect to the Selling Stockholders, which
relates to information relating to them.
(l) The Shares shall have been approved for quotation on the NASDAQ, subject only to
notice of issuance and evidence of satisfactory distribution at or prior to the time of
purchase or the additional time of purchase, as the case may be.
(m) The NASD shall not have raised any objection with respect to the fairness or
reasonableness of the underwriting, or other arrangements of the transactions, contemplated
hereby.
(n) Each Selling Stockholder (with the exception of the VEBA Trust) shall have
delivered to you a duly executed Power of Attorney and a duly executed Custody
- 31 -
Agreement, in each case in form and substance satisfactory to the Managing
Underwriters.
10. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Managing Underwriters, if (1) since the time of execution of this
Agreement or the earlier respective dates as of which information is given in the Registration
Statement, each Preliminary Prospectus, the Prospectus and each Permitted Free Writing Prospectus,
if any, there has been any change or any development involving a prospective change in the
business, properties, financial condition, results of operations, cash flows, management or
prospects of the Company and the Subsidiaries taken as a whole, the effect of which change or
development is, in the sole judgment of the Managing Underwriters, so material and adverse as to
make it impractical or inadvisable to proceed with the public offering or the delivery of the
Shares on the terms and in the manner contemplated in the Registration Statement, each Preliminary
Prospectus, the Prospectus and each Permitted Free Writing Prospectus, if any, or (2) since the
time of execution of this Agreement, there shall have occurred: (A) a suspension or material
limitation in trading in securities generally on the NYSE, the American Stock Exchange or the
NASDAQ; (B) a suspension or material limitation in trading in the Company’s securities on the
NASDAQ; (C) a general moratorium on commercial banking activities declared by either federal or New
York State authorities or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (D) an outbreak or escalation of hostilities or acts of
terrorism involving the United States or a declaration by the United States of a national emergency
or war; or (E) any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in clause
(D) or (E), in the sole judgment of the Managing Underwriters, makes it impractical or inadvisable
to proceed with the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement, each Preliminary Prospectus, the Prospectus and each
Permitted Free Writing Prospectus, if any, or (3) since the time of execution of this Agreement,
there shall have occurred any downgrading, or any notice or announcement shall have been given or
made of: (A) any intended or potential downgrading or (B) any watch, review or possible change that
does not indicate an affirmation or improvement in the rating accorded any securities of or
guaranteed by the Company or any Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined in Rule 436(g)(2) under the Act.
If the Managing Underwriters elect to terminate this Agreement as provided in this Section 10,
the Company, the Selling Stockholders and each other Underwriter shall be notified promptly in
writing.
11. Increase in Underwriters’ Commitments. Subject to Sections 9 and 10 hereof, if
any Underwriter shall default in its obligation to take up and pay for the Firm Shares to be
purchased by it hereunder (otherwise than for a failure of a condition set forth in Section 9
hereof or a reason sufficient to justify the termination of this Agreement under the provisions of
Section 10 hereof) and if the number of Firm Shares which all Underwriters so defaulting shall have
agreed but failed to take up and pay for does not exceed 10% of the total number of Firm Shares,
- 32 -
the non-defaulting Underwriters (including the Underwriters, if any, substituted in the manner
set forth below) shall take up and pay for (in addition to the aggregate number of Firm Shares they
are obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such Shares shall be taken
up and paid for by such non-defaulting Underwriters in such amount or amounts as you may designate
with the consent of each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters pro rata in
proportion to the aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in Schedule A annexed hereto.
Without relieving any defaulting Underwriter from its obligations hereunder, each Selling
Stockholder agrees with the non-defaulting Underwriters that it will not sell any Firm Shares
hereunder unless all of the Firm Shares are purchased by the Underwriters (or by substituted
Underwriters selected by you with the approval of the Company or selected by the Company with your
approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or by the Company for
a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period not exceeding five business
days in order that any necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term “Underwriter” as used in this Agreement shall refer to and include any Underwriter
substituted under this Section 11 with like effect as if such substituted Underwriter had
originally been named in Schedule A annexed hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter or Underwriters agreed
to purchase exceeds 10% of the total number of Firm Shares which all Underwriters agreed to
purchase hereunder, and if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five business day period stated above for the purchase of all the Firm
Shares which the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without any liability on the part of the
Company or any Selling Stockholder to any Underwriter (except as provided in Sections 7, 8, 12 and
21 hereof) and without any liability on the part of any non-defaulting Underwriter to the Company
or to any Selling Stockholder. Nothing in this paragraph, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
12. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter, its
partners, directors and officers, and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage,
- 33 -
expense, liability or claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment thereof by the
Company) or arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, except insofar as any such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such Underwriter furnished in
writing by or on behalf of such Underwriter through you to the Company expressly for use in,
the Registration Statement or arises out of or is based upon any omission or alleged
omission to state a material fact in the Registration Statement in connection with such
information, which material fact was not contained in such information and which material
fact was required to be stated in such Registration Statement or was necessary to make such
information not misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of this
Section 12 being deemed to include any Preliminary Prospectus, the Prospectus and any
amendments or supplements to the foregoing), in any Permitted Free Writing Prospectus, in
any “issuer information” (as defined in Rule 433 under the Act) of the Company, which
“issuer information” is required to be, or is, filed with the Commission, or in any
Prospectus together with any combination of one or more of the Permitted Free Writing
Prospectuses, if any, or arises out of or is based upon any omission or alleged omission 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, except, with respect to such
Prospectus or Permitted Free Writing Prospectus, insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, such Prospectus or Permitted Free Writing Prospectus or arises
out of or is based upon any omission or alleged omission to state a material fact in such
Prospectus or Permitted Free Writing Prospectus in connection with such information, which
material fact was not contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the circumstances under
which they were made, not misleading.
(b) Each Selling Stockholder agrees, severally and not jointly, to indemnify, defend
and hold harmless each Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon (i) any untrue statement
or alleged untrue statement of a material fact contained in the Registration Statement (or
in the Registration Statement as amended by any post-effective amendment thereof by the
Company) or arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated therein or
- 34 -
necessary to make the statements therein not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus, in any Permitted
Free Writing Prospectus or in any Prospectus together with any combination of one or more of
the Permitted Free Writing Prospectuses, if any, or arises out of or is based upon any
omission or alleged omission 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, but only with reference to information relating to such Selling Stockholder
furnished in writing by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement, Prospectus, any Permitted Free Writing Prospectus or any amendments
or supplements thereto. The liability of each Selling Stockholder under this subsection (b)
shall be limited to an amount equal to the gross proceeds (before deducting underwriters’
discounts and commissions and any other expenses of such Selling Stockholder) in respect of
the Shares sold by such Selling Stockholder pursuant to this Agreement.
(c) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, each Selling Stockholder and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable cost of investigation) which,
jointly or severally, the Company, such Selling Stockholder or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such Underwriter through
you to the Company expressly for use in, the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the Company), or arises out
of or is based upon any omission or alleged omission to state a material fact in such
Registration Statement in connection with such information, which material fact was not
contained in such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on behalf
of such Underwriter through you to the Company expressly for use in, a Prospectus or a
Permitted Free Writing Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in such Prospectus or Permitted Free Writing Prospectus in
connection with such information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading.
(d) If any action, suit or proceeding (each, a “Proceeding”) is brought against
a person (an “indemnified party”) in respect of which indemnity may be sought
against the Company, a Selling Stockholder or an Underwriter (as applicable, the
“indemnifying party”) pursuant to subsection (a), (b) or (c), respectively, of this
Section 12, such indemnified party shall promptly notify such indemnifying party in writing
of the
- 35 -
institution of such Proceeding and such indemnifying party shall assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however,
that the omission to so notify such indemnifying party shall not relieve such indemnifying
party from any liability which such indemnifying party may have to any indemnified party or
otherwise, except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such omission, and in any event shall not
relieve the indemnifying party from any liability that such indemnifying party may have
otherwise than on account of the indemnity agreement hereunder. The indemnified party or
parties shall have the right to employ its or their own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of such indemnified party or
parties unless the employment of such counsel shall have been authorized in writing by the
indemnifying party (or, in the case such indemnifying party is a Selling Stockholder, by
such Selling Stockholder or by a Representative of the Selling Stockholders) in connection
with the defense of such Proceeding or the indemnifying party shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to or in
conflict with those available to such indemnifying party (in which case such indemnifying
party shall not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses shall be borne
by such indemnifying party and paid as incurred (it being understood, however, that such
indemnifying party shall not be liable for the expenses of more than one separate counsel
(in addition to any local counsel) in any one Proceeding or series of related Proceedings in
the same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The indemnifying party shall not be liable for any settlement of any
Proceeding effected without its written consent (or, in the case such indemnifying party is
a Selling Stockholder, without the written consent of either such Selling Stockholder or a
Representative of the Selling Stockholders) but, if settled with its written consent (or, in
the case such indemnifying party is a Selling Stockholder, with the written consent of such
Selling Stockholder or of a Representative of the Selling Stockholders), such indemnifying
party agrees to indemnify and hold harmless the indemnified party or parties from and
against any loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party
(or, where such indemnifying party is a Selling Stockholder, requested such Selling
Stockholder or any Representative of the Selling Stockholders) to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second sentence of this
Section 12(d), then the indemnifying party agrees that it shall be liable for any settlement
of any Proceeding effected without its written consent if (i) such settlement is entered
into more than 60 business days after receipt by such indemnifying party (or, where such
indemnifying party is a Selling Stockholder, receipt by such Selling Stockholder or by any
Representative of the Selling Stockholders) of the aforesaid request, (ii) such indemnifying
party shall not have fully reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party shall have given the
indemnifying party (or, where such indemnifying party is a Selling Stockholder, given such
Selling
- 36 -
Stockholder or any Representative of the Selling Stockholders) at least 30 days’ prior
written notice of its intention to settle. No indemnifying party shall, without the prior
written consent of the indemnified party (or, where such indemnified party is a Selling
Stockholder, the prior written consent of such Selling Stockholder or of any Representative
of the Selling Stockholders), effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims that are the
subject matter of such Proceeding and does not include an admission of fault or culpability
or a failure to act by or on behalf of such indemnified party.
(e) If the indemnification provided for in this Section 12 is unavailable to an
indemnified party under subsections (a), (b) and (c) of this Section 12 or insufficient to
hold an indemnified party harmless in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, damages,
expenses, liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the one hand and
the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Selling Stockholders on the one hand and of
the Underwriters on the other in connection with the statements or omissions which resulted
in such losses, damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Selling
Stockholders, and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Shares. The relative fault
of the Company and the Selling Stockholders on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether the untrue statement
or alleged untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or the Selling Stockholders or by the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of
the losses, damages, expenses, liabilities and claims referred to in this subsection (e)
shall be deemed to include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating, preparing to defend or defending any Proceeding.
The liability of each Selling Stockholder under this subsection (e) shall be limited to an
amount equal to the gross proceeds (before deducting underwriters’ discounts and commissions
and any other expenses of such Selling Stockholder) in respect of the Shares sold by such
Selling Stockholder pursuant to this Agreement.
- 37 -
(f) The Company, the Selling Stockholders and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 12 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 that does not take account of the equitable considerations
referred to in subsection (e) above. Notwithstanding the provisions of this Section 12, (i)
no Underwriter shall be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by such Underwriter and distributed to the
public were offered to the public exceeds the amount of any damage which such Underwriter
has otherwise been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission, and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 12 are several in
proportion to their respective underwriting commitments and not joint.
(g) The indemnity and contribution agreements contained in this Section 12 and the
covenants, warranties and representations of the Company and the Selling Stockholders
contained in this Agreement shall remain in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, its partners, directors or officers
or any person (including each partner, officer or director of such person) who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
or by or on behalf of the Company or the Selling Stockholders, their respective directors or
officers or any person who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the delivery of the Shares to be sold by the Selling
Stockholders pursuant hereto. The Company, the Selling Stockholders and each Underwriter
agree promptly to notify each other of the commencement of any Proceeding against it and, in
the case of the Company or a Selling Stockholder, against any of their officers or directors
in connection with the sale of the Shares, or in connection with the Registration Statement,
any Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus.
13. Information Furnished by the Underwriters. The statements set forth under the
sub-captions “Commissions and Discounts” and “Price Stabilization, Short Positions” under the
caption “Underwriting” in the Prospectus, only insofar as such statements relate to the amount of
selling concession and reallowance or to over-allotment and stabilization activities that may be
undertaken by the Underwriters, constitute the only information furnished by or on behalf of the
Underwriters, as such information is referred to in Sections 3 and 12 hereof.
14. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department and Bear, ▇▇▇▇▇▇▇ & Co., Inc., ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Syndicate Department and, if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
- 38 -
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, EVP and Chief Financial Officer (facsimile: 914-614-1869), and, if to the
VEBA Trust, shall be sufficient in all respects if delivered or sent to National City Bank,
▇▇▇▇-▇▇▇▇▇▇▇ Services, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, Facsimile: [•], Attention: [•]
and to Independent Fiduciary Services, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and if to any of
the other Selling Stockholders, shall be sufficient in all respects if delivered or sent to any
Representative of the Selling Stockholders in care of the Company at the offices of the Company as
aforesaid.
15. Governing Law; Construction. This Agreement and any claim, counterclaim or
dispute of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
16. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
and the Selling Stockholders each consent to the jurisdiction of such courts and personal service
with respect thereto. The Company and the Selling Stockholders each hereby consent to personal
jurisdiction, service and venue in any court in which any Claim arising out of or in any way
relating to this Agreement is brought by any third party against any Underwriter or any indemnified
party. Each Underwriter and the Company (on its behalf and, to the extent permitted by applicable
law, on behalf of its stockholders, members and affiliates) and each Selling Stockholder (on its
behalf and, in the case such Selling Stockholder is not an individual, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) each waive all right to trial by jury
in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any
way arising out of or relating to this Agreement. The Company and the Selling Stockholders each
agree that a final judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Company and each Selling Stockholder and may be
enforced in any other courts to the jurisdiction of which the Company or any Selling Stockholder is
or may be subject, by suit upon such judgment.
17. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and the Selling Stockholders and to the extent
provided in Section 12 hereof the controlling persons, partners, directors and officers referred to
in such Section, and their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or corporation (including
a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
18. No Fiduciary Relationship. The Company and the Selling Stockholders each hereby
acknowledge that the Underwriters are acting solely as underwriters in connection with the purchase
and sale of the Company’s securities. The Company and the Selling Stockholders each further
acknowledge that the Underwriters are acting pursuant to a contractual relationship created solely
by this Agreement entered into on an arm’s length basis, and in no event do the
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parties intend that the Underwriters act or be responsible as a fiduciary to the Company or
any Selling Stockholder, their respective management, stockholders or creditors or any other person
in connection with any activity that the Underwriters may undertake or have undertaken in
furtherance of the purchase and sale of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the
Company or any Selling Stockholder, either in connection with the transactions contemplated by this
Agreement or any matters leading up to such transactions, and the Company and the Selling
Stockholders each hereby confirm their understanding and agreement to that effect. The Company,
the Selling Stockholders and the Underwriters agree that they are each responsible for making their
own independent judgments with respect to any such transactions and that any opinions or views
expressed by the Underwriters to the Company or any Selling Stockholder regarding such
transactions, including, but not limited to, any opinions or views with respect to the price or
market for the Company’s securities, do not constitute advice or recommendations to the Company or
any Selling Stockholder. The Company and the Selling Stockholders each hereby waive and release,
to the fullest extent permitted by law, any claims that the Company or any Selling Stockholder may
have against the Underwriters with respect to any breach or alleged breach of any fiduciary or
similar duty to the Company or any Selling Stockholder in connection with the transactions
contemplated by this Agreement or any matters leading up to such transactions.
19. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
20. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and the Selling Stockholders and their successors and assigns and any successor or
assign of any substantial portion of the Company’s, any Selling Stockholder’s and any of the
Underwriters’ respective businesses and/or assets.
21. Survival of Representations. If the sale to the Underwriters of the Shares, as
contemplated by this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement, or if such sale is not carried out because the Company or any Selling
Stockholder, as the case may be, shall be unable to comply with any of the terms of this Agreement,
the Company and the Selling Stockholders shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 7, 8 and 12 hereof), and the Underwriters
shall be under no obligation or liability to the Company or any Selling Stockholder under this
Agreement (except to the extent provided in Section 12 hereof) or to one another hereunder.
22. Other Arrangements. The provisions of this Agreement are not intended to affect
any right of the Company to seek reimbursement, indemnification or contribution from any Selling
Stockholder or of any Selling Stockholder to seek reimbursement, indemnification or contribution
from the Company.
23. Miscellaneous. UBS Securities LLC (“UBS”), an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including obligations with
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respect to sales and purchases of securities. Securities sold, offered or recommended by UBS
are not deposits, are not insured by the Federal Deposit Insurance Corporation, are not guaranteed
by a branch or agency, and are not otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Pages Follow]
- 41 -
If the foregoing correctly sets forth the understanding among the Company, the Selling
Stockholders and the several Underwriters, please so indicate in the space provided below for that
purpose, whereupon this Agreement and your acceptance shall constitute a binding agreement among
the Company, the Selling Stockholders and the Underwriters, severally.
| Very truly yours, | ||||||
| ▇▇▇▇▇▇ Aluminum Corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| The VEBA for Retirees of ▇▇▇▇▇▇ Aluminum | ||||||
| By: | National City Bank, Solely In Its Capacity As VEBA Trustee Under The VEBA Trust And Not Individually |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| The Selling Stockholders named in Schedule C annexed hereto (with the exception of the VEBA Trust) | ||||||
| By: | ▇▇▇▇ ▇. ▇▇▇▇▇▇, Attorney-in-Fact | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A annexed hereto | ||||
| UBS Securities LLC |
||||
| Bear, ▇▇▇▇▇▇▇ & Co. Inc. | ||||
By:
|
UBS Securities LLC | |||
By: |
||||
| Name: | ||||
| Title: | ||||
By: |
||||
| Name: | ||||
| Title: | ||||
By:
|
Bear, ▇▇▇▇▇▇▇ & Co. Inc. | |||
By: |
||||
| Name: | ||||
| Title: | ||||
ASSENT AND ACKNOWLEDGEMENT
The undersigned, by assenting to and acknowledging this Agreement, agrees not to direct or
otherwise cause the VEBA Trustee to take any action in violation of the terms of this Agreement:
INDEPENDENT FIDUCIARY SERVICES, INC.,
in its capacity as Independent Fiduciary of the Retiree Plan in respect of Common Stock held by the
VEBA Trust
By: |
||||