EXHIBIT 4.4
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
Amended and Restated Shareholders Agreement (the "Agreement"), dated as of
December 2, 1997, by and among Howmet International Inc., a Delaware corporation
(the "Company"), Thiokol Corporation, a Delaware corporation ("Thiokol"),
Thiokol Holding Company ("Holding"), a Delaware corporation and a wholly-owned
subsidiary of Thiokol, and Carlyle-Blade Acquisition Partners, L.P., a Delaware
limited partnership ("Carlyle") (individually, a "Party" and collectively, the
"Parties").
WHEREAS, the Parties entered into a Shareholders Agreement dated as of
December 13, 1995 (the "Shareholders Agreement") in connection with the
acquisition by Carlyle of 51% of the outstanding shares of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company and by Holding of 49%
of the outstanding shares of Common Stock and all of the outstanding shares of
9% Series A Senior Cumulative Preferred Stock (the "Preferred Stock") of the
Company;
WHEREAS, Holding, Thiokol, the Company and Carlyle entered into the IPO
Agreement, dated as of October 8, 1997 (the "IPO Agreement"), in connection
with, among other things, an initial public offering (the "IPO") of Common Stock
by Carlyle;
WHEREAS, in connection with the transactions contemplated by the IPO
Agreement, and effective as of this date (the "IPO Closing Date"), Carlyle and
Holding desire to amend and restate the Shareholders Agreement;
NOW THEREFORE, in consideration of the above premises and mutual agreements
set forth in this Agreement and subject to the terms and conditions stated
herein, the Parties hereby agree as follows:
ARTICLE I
CARLYLE NOMINEE
So long as Carlyle or an Affiliate of Carlyle has Beneficial Ownership
of 5% or more of the issued and outstanding Common Stock, the Company shall
nominate, and Holding shall vote its shares of Common Stock for, a duly
qualified Director nominee selected by Carlyle (or such Affiliate) and
reasonably acceptable to Holding and the Board of Directors of the Company (the
"Carlyle Director"). The Carlyle Director shall be either a director or
managing director of Carlyle or an Affiliate of Carlyle. The Carlyle Director
shall have no director interlocks with material customers, suppliers, or
competitors of the Company.
ARTICLE II
TRANSFERS OF SECURITIES
2.01 GENERAL RESTRICTION.
(a) Carlyle shall not sell, transfer, assign, pledge, hypothecate, or
otherwise alienate ("Transfer") any Securities until the first business day
following the date of the fourth anniversary of the IPO Closing (or, with
respect to any Securities as to which Holding has theretofore exercised the Call
Option (as defined below), the Option Closing Date with respect to such
exercise, if later) (the "Free Transfer Date") other than (i) a Transfer to an
Affiliate of Carlyle made in compliance with SECTION 2.04(A), (ii) pursuant to
SECTION 2.04(C), (iii) pursuant to ARTICLE III of this Agreement or (iv)
pursuant to the transactions contemplated by the IPO Agreement.
(b) Holding shall not Transfer any Securities prior to the Free Transfer
Date other than (i) a Transfer to an Affiliate of Holding made in compliance
with SECTION 2.04(B), (ii) pursuant to SECTION 2.04(C) or (iii) in compliance
with SECTION 3.05.
2.02 LEGEND.
(a) The certificates of Common Stock held by Carlyle and Holding
subsequent to the IPO Closing Date will be endorsed with the following legends:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE OR ENCUMBRANCE OR ANY OTHER
ALIENATION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF
THE HOLDERS OF SUCH SECURITIES IN RESPECT OF THE ELECTION OF DIRECTORS ARE
SUBJECT TO THE TERMS AND CONDITIONS OF AN AMENDED AND RESTATED SHAREHOLDERS
AGREEMENT DATED AS OF DECEMBER 2,
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1997. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF THIS CERTIFICATE TO THE SECRETARY OF HOWMET INTERNATIONAL
INC."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED OR SOLD
WITHOUT COMPLIANCE WITH SUCH ACT."
(b) Upon the delivery to the Company by Carlyle or its Affiliates or
Holding or its Affiliates of such legended certificate in connection with a sale
under Rule 144 (including the delivery of customary documents with respect to
the applicability of an exemption from registration) or pursuant to an effective
registration statement, the Company shall issue in exchange therefor a
certificate for such shares without such legend.
2.03 CERTAIN RESTRICTIONS.
Notwithstanding any other provision of this Agreement to the contrary, no
Transfer of Securities pursuant to SECTION 2.04(A) of this Agreement may be
effected by Carlyle prior to the Free Transfer Date unless and until the
intended transferee(s) has acknowledged that the Securities to be transferred
are being transferred subject to provisions of this Agreement and the IPO
Agreement, and the intended transferee(s) has agreed to be bound by the
provisions of this Agreement (including, without limitation, those related to
Security Interests under ARTICLE V, the 4% Option (as defined in the IPO
Agreement), the Call Option (as defined below), the Right of First Refusal (as
defined below) and Transfers to the extent then applicable), in writing in a
form reasonably satisfactory to Holding. In addition, until the Free Transfer
Date (or, if later, the day after the last day on which Holding may purchase the
Call Option Shares pursuant to the Call Option), no Transfer of Securities
pursuant to SECTION 2.04(A) of this Agreement may be effected unless and until
(i) the Security Interest in the transferred Securities continues and remains
after the Transfer a perfected, first priority security interest in the
transferred Securities, securing the obligations under ARTICLE II and ARTICLE
III of this Agreement and ARTICLE III of the IPO Agreement and (ii) Holding
receives an opinion of counsel of national repute to Carlyle (or its transferee)
to the effect that the agreement of the transferee is enforceable against it in
accordance with its terms and as to matters set forth in clause (i) above
(subject to customary qualifications and exceptions). Each such transferee
shall succeed to the obligations, and the rights, of the transferring
shareholder hereunder; provided, however, that Carlyle's right to designate a
director under Article I will not be transferable other than to an Affiliate of
Carlyle as provided in Article I.
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2.04 EXEMPT TRANSFERS.
(a) The provisions of SECTION 2.01(A) shall not apply to the Transfer of
Securities by Carlyle to any of its Affiliates (provided that the provisions of
SECTION 2.03 have been strictly complied with and that no more than ten (10)
Affiliates of Carlyle own Securities at any one time).
(b) The provisions of SECTION 2.01(B) shall not apply to the Transfer of
Securities by Holding to any of its Affiliates; provided that no more than ten
(10) Affiliates of Holding own Securities at any one time; and provided,
further, that the intended transferee(s) has acknowledged that the Securities to
be transferred are being transferred subject to the provisions of this
Agreement, and the intended transferee(s) has agreed to be bound by the
provisions of this Agreement (including, without limitation, ARTICLE I and
SECTION 3.05), in writing in a form reasonably satisfactory to Carlyle. Each
such transferee shall succeed to the obligations, and the rights, of the
transferring shareholder hereunder; provided, however, that the rights under the
Call Option or the Right of First Refusal may be transferred only in strict
compliance with SECTION 3.04.
(c) The provisions of SECTION 2.01 shall not apply to the Transfer of
Securities to the public pursuant to an effective registration statement under
the Securities Act of 1933, as amended, or Rule 144 (provided, in the case of a
Transfer by Carlyle or any of its Affiliates prior to the Free Transfer Date,
that the provisions of SECTION 3.02 have been strictly complied with).
2.05 IMPROPER TRANSFER.
Any attempted transfer of any Securities by Carlyle or Holding (or their
respective transferees) not in accordance with SECTION 2.01 shall be null and
void. The Parties shall cause the Company to provide stop transfer instructions
to any transfer agent for the Common Stock.
ARTICLE III
CALL OPTION; RIGHT OF FIRST REFUSAL; TAG-ALONG
3.01 HOLDING'S CALL OPTION.
(a) Carlyle hereby grants to Holding an option (the "Call Option"),
exercisable from time to time during the Option Period (as defined below), to
purchase up to all of the shares of Common Stock owned by Carlyle not otherwise
purchased by Holding or the underwriters of the IPO pursuant to the IPO
Agreement. Holding may exercise its Call Option in whole or in part (in
increments of 25% of the Common Stock owned by Carlyle at the beginning of the
Option Period or any multiple of 25%) at any time during the period (the "Option
Period") beginning on the date of the second anniversary of the IPO
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Closing Date and ending at the close of business on the date of the fourth
anniversary of the IPO Closing Date; provided, however, that if there occurs a
change in the ultimate Beneficial Ownership of TCG Holdings, L.L.C. of more than
50% as a result of a single transaction (or series of related transactions),
from and after such Change of Beneficial Ownership until the end of the Option
Period, Holding shall have the right to exercise the Call Option in accordance
with this SECTION 3.01; and provided, further, that Holding may not exercise its
Call Option if, at the time of such exercise, senior management of Thiokol is
engaged in serious discussions with a third party (other than an Affiliate of
Thiokol) relating to the sale, transfer or assignment by Thiokol and its
Subsidiaries (other than the Company) of 10% or more of the outstanding
Securities of the Company thereto.
(b) The purchase price of the Option Shares shall be equal to the Market
Price (as defined below) of the Common Stock as of the date the Option Exercise
Notice (as defined below) is delivered to Carlyle. "Market Price" shall mean,
as of any date of determination, the volume-weighted average of the prices per
share of Common Stock for all trades reported on the New York Stock Exchange,
Inc. ("NYSE") during the 20 consecutive trading days ending immediately prior to
the date of determination. Consecutive trading days shall include such dates
that shares of Common Stock do not trade on a NYSE regularly scheduled trading
day.
(c) The Call Option may be exercised during the Option Period by Holding
delivering a written notice of exercise (the "Option Exercise Notice") to
Carlyle specifying the number of Shares of Common Stock to be purchased and the
date (the "Exercise Date"), which date shall be at least five days after the
date of the Option Exercise Notice but no later than 15 business days after such
date, upon which Holding shall acquire the Option Shares specified in the Option
Exercise Notice (the "Option Closing Date"). Any exercise of the Call Option
may be subject to the conditions set forth in SECTION 3.03 below. If the Option
Shares are not purchased because any of the conditions in SECTION 3.03 are not
met, none of the rights and remedies of any Person will be lost as a result of
the purchase not occurring.
3.02 HOLDING'S FIRST RIGHT OF REFUSAL.
(a) During the period beginning at the earlier of (i) the second
anniversary of the IPO Closing Date or (ii) a Change of Control of Thiokol and
ending at the fourth anniversary of the IPO Closing Date, Carlyle may Transfer
shares of Common Stock provided that it shall have delivered to Holding during
the Option Period a written notice (the "Right of First Refusal Notice") of
Carlyle's intent to Transfer up to all of the remaining shares of Common Stock
(in increments of 25% of the outstanding shares of Common Stock owned by Carlyle
on the first day of the Option Period or any multiple of 25%) then owned by
Carlyle. The Right of First Refusal Notice shall specify the number of shares
proposed to be
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Transferred (the "Transfer Shares"), the identity of the proposed transferee
(other than in connection with the exercise of its registration rights pursuant
to the Registration Rights Agreement dated as of the date hereof between Carlyle
and the Company (the "Registration Rights Agreement") or in connection with
sales under Rule 144) and the proposed purchase price (which may simply be
"market price" in the case of sales under a registration statement or pursuant
to Rule 144).
(b) Holding shall have the right (the "Right of First Refusal"),
exercisable at any time within 10 business days (the "Refusal Period") from the
date that Holding receives the Right of First Refusal Notice from Carlyle
("Right of First Refusal Date"), to purchase all, but not less than all, of the
Transfer Shares at the Market Price determined as of the Right of First Refusal
Date. The Right of First Refusal may be exercised by Holding delivering a
written notice of exercise (the "Refusal Exercise Notice") during the Refusal
Period specifying the date, which date shall be at least five business days
after the date of the Refusal Exercise Notice but no later than 20 business days
after such date, upon which Holding shall acquire the Transfer Shares specified
in the Refusal Exercise Notice (the "Refusal Closing Date"). Any exercise of
the Right of First Refusal may be subject to the conditions set forth in SECTION
3.03 below. If the Transfer Shares are not purchased because any of the
conditions in SECTION 3.03 are not met, none of the rights and remedies of any
Person will be lost as a result of the purchase not occurring.
(c) In the event Holding does not exercise the Right of First Refusal (or
fails to consummate any purchase during the specified periods following such
exercise other than due to a breach by Carlyle), Carlyle shall have the right to
consummate the Transfer specified in the Right of First Refusal Notice within 90
days after the expiration of the Refusal Period or, in the case of sales
pursuant to the Registration Rights Agreement, until such sales are made or the
registration statement is withdrawn.
3.03 CLOSING OF THE CALL OPTION OR THE RIGHT OF FIRST REFUSAL.
The closing of Holding's acquisition of Option Shares pursuant to Holding's
exercise of the Call Option or the Transfer Shares pursuant to Holding's
exercise of the Right of First Refusal shall take place at the office of counsel
to Holding at 10:00 a.m. on the Option Closing Date or the Refusal Closing Date,
as the case may be. Holding shall deliver to Carlyle the purchase price of the
Option Shares or the Transfer Shares by wire transfer of immediately available
funds to the account number specified by Carlyle at least two business days
prior to the closing, and Carlyle shall deliver to Holding certificates
evidencing the shares being acquired by Holding, duly endorsed for transfer. It
shall be a condition of Holding's obligation at such closing that (i) the
representations and warranties set forth in clause (i) of the second sentence of
SECTION 4.01 shall be true and correct as of the Option Closing Date or the
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Refusal Closing Date, as the case may be, (ii) Holding shall have received a
certificate of Carlyle, signed by each of its general partners, to such effect,
and (iii) Holding shall have received the opinion of counsel of national repute
to Carlyle as to the matters set forth in clauses (i) and (ii) of the second
sentence of SECTION 4.01, which counsel and opinion shall be reasonably
satisfactory to Holding (it being agreed that an opinion of counsel in the form
provided by Carlyle's counsel to the underwriters of the IPO shall be deemed
satisfactory). It shall be a condition to the obligation of each of Holding and
Carlyle to consummate the sale of the Option Shares or the Transfer Shares being
sold to Holding that all necessary consents, approvals and authorizations of
third parties and governmental agencies required to be obtained with respect to
such acquisition shall have been obtained as of the Option Closing Date or the
Refusal Closing Date, as the case may be; provided that each of Holding and
Carlyle shall take whatever steps are reasonably necessary to obtain such
consents, approvals and authorizations to permit the legal transfer to Holding
of such shares and to ensure that Holding's consummation of such purchases will
not create an event of default under the Company's or any of its Subsidiaries'
credit agreements or give rise to an acceleration or requirement to make a
change of control offer with respect to any indebtedness of the Company or any
of its Subsidiaries (provided that Holding shall not be obligated to dispose of
any assets to obtain any such consent, authorization or approval). Holding and
Carlyle shall share equally all reasonable expenses incurred in connection with
obtaining such consents, approvals and authorizations. Holding and Carlyle
shall share equally all U.S. federal, state and local transfer taxes (which term
shall include any governmental fees or assessments generally applicable to
capital stock transfers), if any, attributable to the delivery of the Option
Shares or the Transfer Shares, as the case may be. Any foreign transfer taxes
shall be paid (i) by Carlyle, if such taxes are imposed by virtue of Carlyle's
foreign residence or activities or removal of the Option Shares or the Transfer
Shares to a foreign jurisdiction, and (ii) by Holding, if such taxes are imposed
by virtue of Holding's (or its transferee's) foreign residence or activities.
3.04 NON-ASSIGNMENT OF CALL OPTION AND FIRST RIGHT OF REFUSAL.
Holding shall not assign or transfer its rights under the Call Option or
First Right of Refusal without Carlyle's prior written consent (which consent
may be withheld by Carlyle in its sole and absolute discretion), provided that
Holding may so transfer the Call Option and Right of First Refusal to any
parent corporation or any direct or indirect wholly owned Affiliate of Thiokol
without such consent.
3.05 TAG-ALONG RIGHT.
(a) Holding agrees that, prior to the Free Transfer Date, it shall not
Transfer shares of Common Stock held by it to an unaffiliated third party or
parties ("Third Party") (other than pursuant to SECTION 2.04(B) or SECTION
2.04(C) or a bona fide pledge of the shares of Common Stock to a financial
institution as
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security for borrowings, to which the provisions of this SECTION 3.05 do not
apply), unless the terms and conditions of such Transfer shall include an offer
to each of Carlyle and its Affiliate transferees ("Carlyle Shareholders") to
include in the transfer to the Third Party, at such Carlyle Shareholder's option
and on the Third Party Terms (as defined below), an amount of the shares of
Common Stock determined in accordance with SECTION 3.05(C) (the "Tag-Along
Rights").
(b) Holding shall deliver notice to the Company, Carlyle and each other
Carlyle Shareholder of any proposed Transfer to which the provisions of this
SECTION 3.05 apply (a "Sale Notice"). Each Sale Notice shall set forth: (i)
the name of the Third Party and the number of shares of Common Stock proposed to
be transferred, (ii) the address of the Third Party, (iii) the proposed amount
and form of consideration and terms and conditions of payment offered by the
Third Party, and any other material terms pertaining to the Transfer (the "Third
Party Terms"), and (iv) that the Third Party has been informed of the Tag-Along
Rights provided for in this SECTION 3.05 and has agreed to abide by the terms of
the Tag-Along Rights.
(c) Following delivery of a Sale Notice, each of the Carlyle Shareholders
shall have the option to sell to the Third Party on the Third Party Terms an
amount of shares of Common Stock calculated as follows: The Third Party shall
be required to purchase from each Carlyle Shareholder desiring to participate in
such transaction the number of shares of Common Stock owned by such Carlyle
Shareholder equaling the lesser of (x) the number derived by multiplying (i) the
total number of shares of Common Stock to be purchased by the Third Party by
(ii) a fraction, the numerator of which is the aggregate number of shares owned
by such Carlyle Shareholder and the denominator of which is the number of shares
of Common Stock then owned in the aggregate by Holding (and its Affiliate
transferees) and all Carlyle Shareholders, or (y) such lesser number of shares
as the Carlyle Shareholder shall designate in the Tag-Along Notice (defined
below). The Tag-Along Rights set forth in SECTION 3.05 may be exercised by any
Carlyle Shareholder by delivery of a written notice to the Company and Selling
Shareholder (the "Tag-Along Notice") within ten (10) business days following
receipt of a Sale Notice (the "Tag-Along Period"). The Tag-Along Notice shall
state the number of shares that such Carlyle Shareholder wishes to include in
such transfer to the Third Party. Upon the giving of a Tag-Along Notice, such
Carlyle Shareholder shall be entitled and obligated to sell the number of shares
set forth in the Tag-Along Notice to the Third Party on the Third Party Terms;
provided, however, that neither Holding nor any such Carlyle Shareholder shall
consummate the sale of any shares offered by it if the Third Party does not (i)
purchase all shares which Holding and the Carlyle Shareholders are entitled and
desire to sell pursuant hereto and (ii) agree to be bound by the obligations of
Holding pursuant to ARTICLE I of this Agreement until the third anniversary of
the IPO Closing Date.
At the closing of the Transfer to any Third Party (of which Holding shall
give each Carlyle Shareholder who has elected to exercise the Tag-Along Right
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provided by this SECTION 3.05 at least five business days' prior written
notice), the Third Party shall remit to Holding and each Carlyle Shareholder who
has elected the Tag-Along Right (collectively the "Selling Shareholders") the
consideration for the total sales price of the shares of such Selling
Shareholder sold pursuant thereto, against delivery by such Selling Shareholder
of certificates for such shares, duly endorsed or with duly executed stock
powers and the compliance by such Selling Shareholder with any other conditions
to closing generally applicable to the Selling Shareholders.
(d) If the provisions of this SECTION 3.05 have been complied with in all
respects, Holding shall have the right for a 120-day period following delivery
of the Sale Notice to transfer the shares of Common Stock to the Third Party on
the Third Party Terms (or on other terms no more favorable to the Selling
Shareholder) without further notice to Carlyle Shareholders who have not given a
Tag-Along Notice, but after such 120-day period no such transfer may be made
without again giving notice to all Carlyle Shareholders of the proposed transfer
and complying with the requirements of this SECTION 3.05.
(e) Thiokol shall cause Holding to comply with its obligations under this
SECTION 3.05.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01 CARLYLE REPRESENTATIONS AND WARRANTIES.
Carlyle represents and warrants to Holding that it owns all of the shares
of Common Stock free and clear of all liens, encumbrances, security agreements,
options, claims, charges, restrictions and rights of third parties of any type
or description whatsoever (except restrictions of general applicability imposed
by federal and state securities laws and those restrictions and the security
interest created by this Agreement) ("Liens"). Carlyle agrees that, except in
the case of sales of Common Stock permitted under this Agreement to Persons
other than Holding, it will not create any Lien on the Common Stock until after
the last day of the Option Period and Carlyle represents and warrants that (i)
upon the purchase by Holding of the shares of Common Stock and payment in full
of the purchase price therefor, Holding will acquire Common Stock free and clear
of any Liens and (ii) the sale of the Common Stock to Holding by Carlyle
pursuant to exercise of any of its rights to purchase the Common Stock subject
to the terms of this Agreement will not result in a default under or breach of
or conflict with any agreement to which Carlyle is a party or by which it or any
of its assets is bound or result in the violation of any law, rule or regulation
applicable to Carlyle.
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4.02 HOLDING REPRESENTATION AND WARRANTIES.
Holding represents and warrants to Carlyle that (i) Holding, upon the
exercise of any of its rights to purchase Common Stock subject to the Agreement
is acquiring and will acquire the Common Stock for its own account and not with
a view to distribution and (ii) the sale of the Common Stock to Holding by
Carlyle pursuant to his Agreement will not result in a default under or breach
of or conflict with any agreement to which Holding or Thiokol is a party or by
which it or any of its assets are bound or result in the violation of any law,
rule or regulation applicable to Holding. Holding acknowledges that the Common
Stock acquired pursuant to this Agreement has not been registered or qualified
under the Securities Act of 1933 or any state securities law, and therefore
cannot be resold by Holding unless they have been so registered or qualified or
an exemption from registration and qualification is available.
ARTICLE V
SECURITY AGREEMENT
To secure the obligations of Carlyle to Holding under ARTICLE II and
ARTICLE III of this Agreement and ARTICLE III of the IPO Agreement for any
damages arising from (i) the breach by Carlyle of any of such provisions and/or
(ii) the rejection by Carlyle, as debtor or debtor in possession, or by any
trustee in bankruptcy for Carlyle, of Carlyle's obligations under ARTICLE II and
ARTICLE III of this Agreement and ARTICLE III of the IPO Agreement, Carlyle
hereby grants to Holding a continuing security interest in the shares of Common
Stock held by Carlyle subsequent to the IPO. To perfect such security interest,
the Common Stock and stock powers executed in blank by Carlyle with respect
thereto will at all times commencing with the IPO Closing Date to the Security
Interest Termination Date (as hereinafter defined) be held by First National
Bank of Chicago (or another institution) pursuant to the Collateral Custodial
Agreement (the "Collateral Custodial Agreement") in the Form of EXHIBIT J
attached to the Stock Purchase Agreement dated as of December 13, 1995 by and
among Holding, Carlyle and the Company (the "Stock Purchase Agreement") which
shall remain in full force and effect notwithstanding this Agreement and the IPO
Agreement. Carlyle represents and warrants to Holding that at all times through
the Security Interest Termination Date, such security interests will be a first
priority, preferred, non-preferential security interest in favor of Holding.
The Security Interest Termination Date will occur upon the earlier of (i) the
purchase by Holding of all of the Common Stock owned by Carlyle, (ii) after the
last date of the Option Period described in SECTION 3.01 under which the Call
Option or the Right of First Refusal may be exercised or (iii) with respect to
any shares of Common Stock permitted to be sold under this Agreement, upon the
consummation of such sale. This ARTICLE V is the Security Agreement. In
addition to any other rights and remedies Holding may have, Holding will have
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the rights of a secured party upon default under the applicable Uniform
Commercial Code with respect to such Common Stock. In connection with any
transfer of shares by Carlyle permitted by this Agreement (other than to an
Affiliate of Carlyle pursuant to SECTION 2.04(A)), Thiokol will cooperate
promptly to take all actions necessary to release such shares from the
provisions of this ARTICLE V and the Collateral Custodial Agreement. Any shares
not previously released shall be released on the Free Transfer Date, and the
Parties shall take all actions necessary to effect such release. In addition,
as promptly as practicable after the date of this Agreement, the Parties shall
take all actions necessary to release any shares owned by Holding from the
Collateral Custodial Agreement and the security provisions under the Stock
Purchase Agreement.
ARTICLE VI
CONFIDENTIALITY AND NON-COMPETE
6.01 CONFIDENTIALITY.
During the period that a Carlyle Director is a member of the Board of
Directors of the Company, and for one year thereafter, except as required by
law, Carlyle and its Affiliates, and their respective principals, directors,
employees and agents (collectively "Representatives") shall hold and not use
(other than in the capacity as a director of or an investor in the Company) or
disclose any and all competition sensitive, business confidential, proprietary,
trade secret information ("Confidential Information") of the Company obtained as
an investor or in the capacity as a director or officer of the Company prior to
and subsequent to the IPO; provided, that this obligation shall not apply to
Confidential Information that (a) is generally available in the public domain,
(b) is known to Carlyle and its representatives other than through the
investment relationship and directorship with the Company or (c) becomes
publicly disclosed through no breach of this confidentiality obligation by
Carlyle or its representatives. In the event that Carlyle is requested to
disclose any Confidential Information through a formal judicial proceeding in a
court of competent jurisdiction, Carlyle shall give Holding prompt notice of
such request so that Holding may seek an appropriate protective order.
6.02 NON-COMPETE.
During the period of time that a Carlyle Director is a member of the
Board of Directors of the Company and for one year thereafter, Carlyle shall
not, and shall cause its Affiliates not to, make an investment in any Person
identified on Schedule I or any Person that is a direct and substantial
competitor with the business of the Company, other than (i) investments of less
than 2% of the outstanding equity securities of any Person or (ii) investments
in any Person
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(other than a Person identified on Schedule I) for which the annual revenues and
assets relating to the business of such Person that competes with the Company
are less than 15% of such Person's total annual revenues and assets.
6.03 EQUITABLE RELIEF.
Holding shall be entitled to equitable relief including an injunction
in addition to all other remedies available to enforce the obligations of
Carlyle under this ARTICLE VI.
ARTICLE VII
MISCELLANOUS
7.01 NOTICES.
Any notice or other communication required or permitted hereunder shall be
in writing and shall be delivered personally, or sent by facsimile transmission
or sent by certified, registered or express mail, postage prepaid. Any such
notice shall be deemed given when so delivered personally, or sent by facsimile
transmission or, if mailed, three (3) business days after the date of deposit in
the United States mail, by certified mail return receipt requested (if also sent
by facsimile if available at the office of the recipient), as follows:
If to Carlyle, to:
Carlyle-Blade Acquisition Partners, L.P.
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Telecopier: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
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If to Holding, to:
Thiokol Holding Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx
Director
Telecopier: (000) 000-0000
With copies to:
Thiokol Corporation
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
Corporate Vice President
and General Counsel
Telecopier: (000) 000-0000
and:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telecopier: (000) 000-0000
Any Party, by notice given in accordance with this SECTION 7.01 to the
other Parties, may designate another address or Person for receipt of notices
hereunder.
7.02 RECLASSIFICATION, REORGANIZATION, MERGER, ETC.
The rights and restrictions contained in this Agreement with respect
to Common Stock apply to all Securities held on the date hereof and any
Securities acquired in the future whether by purchase, exchange,
reclassification, reorganization, stock split, dividend, any other change in the
Company's capital structure or otherwise.
7.03 WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION OF
REMEDIES.
ARTICLE VII of this Agreement may be amended, superseded, cancelled,
renewed or extended, and the terms hereof may be waived only by a written
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instrument signed by the Parties or in the case of a waiver, by the Party
waiving compliance. Any other provision of this Agreement may be amended,
superseded, cancelled, renewed or extended, and the terms thereof may be waived
only by a written instrument signed by Carlyle and Holding or in the case of a
waiver, by such of Carlyle or Holding waiving compliance. No delay on the part
of any Party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof except as expressly provided herein. No waiver on the part
of any Party of any right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, shall preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity.
7.04 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the substantive and procedural laws of the State of New York applicable to
agreements made and to be performed entirely within such State (without giving
effect to any conflict of laws principles which might require application of the
law of a different jurisdiction), except as to any matters relating to the
corporate governance or the capital stock of the Company, which shall be
governed by the law of the State of Delaware.
7.05 ARBITRATION OF DISPUTES.
Except for controversies, claims or enforcement of the confidentiality
and covenant not to compete provisions set forth in ARTICLE VI, any other
controversy or claim arising out of this Agreement, or any other breach of this
Agreement, including any controversy or claim as to arbitrability or rescission,
shall be settled by arbitration in accordance with the commercial arbitration
rules of the Judicial Arbitration and Mediation Service.
(a) Such arbitration shall be conducted in the District of Columbia.
(b) Any judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof. The arbitrators shall not,
under any circumstances, have any authority to award punitive, exemplary or
similar damages.
(c) Any Party may pursue the remedy of specific performance of the
Agreement or seek a preliminary or permanent injunction against the breach of
the Agreement or in aid of the exercise of any power granted hereunder, or any
combination thereof in any of the federal courts located within the District of
Columbia without resort to arbitration.
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(d) For the purposes of adjudicating any controversy, claim or the
enforcement of confidentiality and covenant not to compete provisions in ARTICLE
VI hereof and for the enforcement of the Arbitration of Dispute in this SECTION
7.05, the Parties hereby consent to the jurisdiction of the federal courts
located within the District of Columbia.
7.06 BINDING EFFECT; NO ASSIGNMENT; NO THIRD PARTY BENEFICIARIES.
Except as expressly provided herein, neither this Agreement, nor any right
hereunder, may be assigned by any Party without the written consent of the other
Parties. Any such assignment or attempted assignment in violation of the
foregoing shall be void. Subject to the foregoing, this Agreement shall be
binding upon and inure solely for the benefit of the Parties and their permitted
successors and assigns and nothing in this Agreement, express or implied, is
intended to confer upon any other Person any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
7.07 COUNTERPARTS.
This Agreement may be executed by the Parties in separate counterparts,
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed by less than
all, but together signed by all of the Parties.
7.08 HEADINGS.
The headings in the Agreement are for reference only, and shall not affect
the interpretation of this Agreement.
7.09 SEVERABILITY.
If any portion of this Agreement shall be deemed unenforceable, the
remaining portions shall be valid and enforceable.
7.10 TIME OF ESSENCE.
Time is of the essence for each and every provision of this Agreement.
7.11 ATTORNEYS' FEES.
If any legal action, arbitration or other proceeding is brought for
the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party shall be entitled to recover
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reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
7.12 SURVIVAL.
All representations, warranties, covenants and agreements of the parties
shall survive the consummation of the transactions contemplated by this
Agreement.
7.13 DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
(a) "Affiliate" or "Affiliates" as applied to any Person, shall mean any
other Person directly or indirectly controlling, controlled by, or under
common control with that Person. For the purposes of this definition,
"control" (including with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of that Person, whether
through the ownership of voting securities or by contract or otherwise.
(b) "Beneficially Own" and "Beneficial Ownership" have the meanings given
to these terms in Rule 13d-3 of the Rules and Regulations of the Securities
and Exchange Commission under the Exchange Act, as in effect on the date
hereof.
(c) "Change of Control" means any of the following: (i) the sale, lease,
conveyance or other disposition of all or substantially all of the assets
of Thiokol as an entirety or substantially as an entirety to any Person or
"group" (within the meaning of Section 13(d)(3) of the Exchange Act) in one
or a series of transactions, provided that a transaction where the holders
of all classes of capital stock of Thiokol generally entitled to vote in
the election of directors ("Common Equity") immediately prior to such
transaction own, directly or indirectly, 50 percent or more of all classes
of Common Equity of such Person or group immediately after such
transaction(s) shall not be a Change of Control; (ii) the liquidation or
dissolution of Thiokol, provided that a liquidation or dissolution of
Thiokol which is part of a transaction or series or related transactions
that does not constitute a Change of Control under the "provided" clause of
clause (i) above shall not constitute a Change of Control under this clause
(ii); (iii) any transaction or series of transactions (as a result of a
tender offer, merger, consolidation or otherwise) that results in, or that
is in
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connection with any Person, including a "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) that includes such Person, not
theretofore having "beneficial ownership" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of 50 percent or more of the
aggregate voting power of all classes of Common Equity of Thiokol,
acquiring such 50 percent or more direct or indirect "beneficial
ownership," provided that transfers of securities among corporations that
are affiliated by 100% common ownership (such as a contribution by a parent
corporation to a wholly owned subsidiary) shall not, of themselves, result
in a Change of Control; or (iv) any Person, including such a group, elects
as directors of Thiokol Persons who were not theretofore directors, were
not nominees of the Nominating Committee of the Board of Directors of
Thiokol and after election constitute a majority of the Board of Directors
of Thiokol.
(d) "Person" means and includes natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions
thereof.
(e) "Securities" shall mean any shares of capital stock of the Company
(other than the 9% Series A Cumulative Preferred Stock of the Company),
whether now authorized or not, and any rights, options or warrants to
purchase securities of any type which are, or may become, convertible into
such capital stock of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed on the date first above written.
CARLYLE-BLADE ACQUISITION
PARTNERS, L.P., a Delaware limited
partnership.
By: Carlyle Partners II, L.P.
Its: General Partner
By: TC Group, L.L.C.
Its: General Partner
By: TCG Holdings, L.L.C.
Its: Managing Member
By: /s/
_____________________
Name:_____________________
Title:____________________
THIOKOL CORPORATION
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
---------------------
Title:Senior Vice President
---------------------
THIOKOL HOLDING COMPANY
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
---------------------
Title: President
---------------------
HOWMET INTERNATIONAL INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------
Name: Xxxxxx X. Xxxx
-------------------
Title: Secretary
-------------------
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