EXHIBIT 4.5
CORPORATE AGREEMENT
Corporate Agreement, dated as of December 2, 1997 ("this Agreement"), by and
among Thiokol Corporation, a Delaware corporation ("Thiokol'), Thiokol Holding
Company, a Delaware corporation and a wholly owned subsidiary of Thiokol
("Holding"), and Howmet International Inc., a Delaware corporation (the
"Company") (individually, a "Party" and collectively, the "Parties").
WHEREAS, Holding, Thiokol, the Company and Carlyle-Blade Acquisition
Partners, L.P., a Delaware limited partnership (together with its affiliates,
"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") and, simultaneously with the consummation of the IPO (the "IPO
Closing Date"), the sale by Carlyle of 13,000,000 shares of Common Stock to
Holding (the "Sale");
WHEREAS, upon consummation of the transactions contemplated by the IPO
Agreement, Thiokol will own 62,000,000 shares of Common Stock, par value $.01
per share (the "Common Stock"), of the Company;
WHEREAS, in connection with the transactions contemplated by the IPO
Agreement, the Parties desire to enter into this 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
RESTRICTION ON ACQUISITIONS
Neither Thiokol, Holding nor any of their Affiliates shall, without the
consent of (i) a majority (but not less than two) of the non-employee directors
of the Company who are not directors or employees of Thiokol, Holding, Carlyle
or their respective Affiliates and (ii) if Carlyle has a representative on the
Board of Directors of the Company (the "Carlyle Director"), the Carlyle
Director, acquire Publicly Held Shares (as defined below) if, after such
acquisition, the number of Publicly Held Shares would be less than 14% of the
total number of shares of Common Stock outstanding other than (i) pursuant to a
tender offer to acquire all of the outstanding shares of Common Stock not then
Beneficially Owned by Thiokol and/or Holding or (ii) pursuant to a merger or
other business combination in which holders of all outstanding Publicly Held
Shares are treated
the same. For purposes of this ARTICLE I, "Publicly Held Shares" shall mean
outstanding shares of Common Stock other than shares held by Thiokol, Holding,
Carlyle or any of their Affiliates.
ARTICLE II
PREEMPTIVE RIGHT
2.01 Grant of Preemptive Right.
The Company hereby grants to Holding, on the terms and conditions set forth
herein, a continuing right (the "Preemptive Right") to purchase from the
Company, at the times set forth herein, such number of shares of Common Stock as
is necessary to allow Thiokol and its Subsidiaries (other than the Company and
its Subsidiaries) (collectively, the "Thiokol Entities") to maintain the then-
current Ownership Percentage (as defined below). The Preemptive Right shall be
assignable, in whole or in part and from time to time, by Holding to any Thiokol
Entity. The exercise price for the shares of Common Stock purchased pursuant to
the Preemptive Right shall be 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 first delivery of notice of exercise of the Preemptive Right by
Holding (or its permitted transferee) to the Company, or, in the case of any
public offering of Common Stock for cash, a price per share equal to the net
proceeds per share to the Company from such offering. Consecutive trading days
shall include such dates that shares of Common Stock do not trade on a New York
Stock Exchange regularly scheduled trading day. For purposes of this Agreement,
"Ownership Percentage" means, at any time, the fraction, expressed as a
percentage and rounded to the next highest thousandth of a percent, whose
numerator is the number of shares of Common Stock owned by the Thiokol Entities
and whose denominator is the number of outstanding shares of Common Stock;
provided, however, that any shares of Common Stock issued by the Company in
violation of its obligations under ARTICLE II of this Agreement shall not be
deemed outstanding for the purpose of determining the Ownership Percentage.
2.02 NOTICE.
As promptly as practicable, but in any event within ten business days,
after the issuance of any shares of Common Stock that results in a reduction in
the Ownership Percentage, the Company will notify Holding in writing (a
"Preemptive Right Notice"). Each Preemptive Right Notice must specify the date
on which the Company issued such additional shares (such issuance being referred
to herein as an "Issuance Event" and the date of such issuance or event
-2-
as an "Issuance Event Date"), the number of shares the Company issued and the
other terms and conditions of such Issuance Event.
2.03 PREEMPTIVE RIGHT EXERCISE AND PRICE.
The Preemptive Right may be exercised by Holding (or any Thiokol Entity to
which all or any part of the Preemptive Right have been assigned) for a number
of shares equal to or less than the number of shares that are necessary for the
Thiokol Entities to maintain, in the aggregate, the Ownership Percentage. The
Preemptive Right may be exercised at any time within 20 business after receipt
of a Preemptive Right Notice by the delivery to the Company of a written notice
to such effect specifying (i) the number of shares of Common Stock to be
purchased by Holding, or any of the Thiokol Entities, and (ii) a calculation of
the exercise price for such shares. Upon any such exercise of the Preemptive
Right, the Company will, on the fifth business day after the receipt of such
notice of exercise, deliver to Holding (or any Thiokol Entity designated by
Holding), against payment therefor, certificates (issued in the name of Holding
or its permitted assignee hereunder, or as directed by Holding) representing the
shares of Common Stock being purchased upon such exercise. Payment for such
shares shall be made by wire transfer or intrabank transfer to such account as
shall be specified by the Company, for the full purchase price for such shares.
2.04 TERMINATION OF PREEMPTIVE RIGHT.
The Preemptive Right shall terminate in the event the Thiokol Entities shall
not Beneficially Own at least 20% of the outstanding shares of Common Stock.
ARTICLE III
INDEPENDENT DIRECTORS
The Company, Thiokol and Holding shall each use its good faith efforts to
(i) as promptly as practicable, but in any event within three months following
the IPO Closing Date, cause at least two members of the Company's Board of
Directors to be independent directors within the meaning of the rules of the New
York Stock Exchange regarding who may serve on the audit committee of a company
listed on such exchange (as such rules are in effect as of the date of this
Agreement) and (ii) establish a Committee of Independent Directors of the
Company's Board of Directors which will be responsible for approving the terms
of all material agreements and transactions, and any material amendments to such
agreements, between the Company and Thiokol or any of its Affiliates (other than
the Company and its Subsidiaries) after the IPO Closing Date.
-3-
ARTICLE IV
MISCELLANEOUS
4.01 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 the Company, to:
Howmet International Inc.
475 Steamboat Road
Greenwich, CT 06830
Attention: Roland Paul
Vice President and
General Counsel
Telecopier: (203) 625-8771
If to Thiokol, to:
Thiokol Corporation
2475 Washington Boulevard
Ogden, UT 84401-2398
Attention: Daniel S. Hapke, Jr.
Corporate Vice President
and General Counsel
Telecopier: (801) 629-2279
-4-
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019-6150
Attention: Eric S. Robinson
Telecopier: (212) 403-2000
If to Holding, to:
Thiokol Holding Company
1105 North Market Street
Suite 1132
Wilmington, Delaware 19899
Attention: Edward T. Hendrixson
Director
Telecopier: (302) 427-4605
With copies to:
Thiokol Corporation
2475 Washington Boulevard
Ogden, UT 84401-2398
Attention: Daniel S. Hapke, Jr.
Corporate Vice President
and General Counsel
Telecopier: (801) 629-2279
and:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019-6150
Attention: Eric S. Robinson
Telecopier: (212) 403-2000
Any Party, by notice given in accordance with this SECTION 4.01 to the
other Parties, may designate another address or person for receipt of notices
hereunder.
-5-
4.02 RECLASSIFICATION, REORGANIZATION, MERGER, ETC.
The rights and restrictions contained in this Agreement with respect to the
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.
4.03 WAIVERS AND AMENDMENTS; NON-CONTRACTUAL REMEDIES; PRESERVATION OF
REMEDIES.
This Agreement may be amended, superseded, cancelled, renewed or extended,
and the terms hereof may be waived only by a written instrument signed by the
Parties or in the case of a waiver, by the Party waiving compliance; provided,
however, that ARTICLE I of this Agreement may not be amended or the provisions
thereof waived without the consent of (i) a majority (but not less than two) of
the non-employee directors of the Company who are not directors or employees of
Thiokol, Holding, Carlyle or their respective Affiliates and (ii) if Carlyle has
a representative on the Board of Directors of the Company, the Carlyle Director.
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.
4.04 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.
4.05 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. This Agreement shall be binding upon and inure solely
-6-
to the benefit of the Parties hereto 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.
4.06 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.
4.07 HEADINGS.
The headings in the Agreement are for reference only, and shall not affect
the interpretation of this Agreement.
4.08 SEVERABILITY.
If any portion of this Agreement shall be deemed unenforceable, the remaining
portions shall be valid and enforceable.
4.09 TIME OF ESSENCE.
Time is of the essence for each and every provision of this Agreement.
4.10 EXPENSES.
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 reasonable
attorneys' fees and other costs incurred in that action or proceeding, in
addition to any other relief to which it may be entitled.
4.11 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,"
-7-
"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 Securities Exchange Act of 1934, as
amended, as in effect on the date hereof.
(c) "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.
(d) "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.
(e) "Subsidiary" means any corporation, association partnership, limited
partnership, limited liability partnership, limited liability company,
business trust or other business entity of which 50% or more of the total
voting power of shares of stock entitled to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by the Company or one or more of the other
subsidiaries of the Company or a combination thereof.
-8-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly
executed on the date first above written.
HOWMET INTERNATIONAL INC.
a Delaware corporation
By: /s/ Roland A. Paul
------------------
Name: Roland A. Paul
------------------
Title: Secretary
----------------
THIOKOL HOLDING COMPANY
a Delaware corporation
By: /s/ Richard L. Corbin
---------------------
Name: Richard L. Corbin
-----------------
Title: President
-----------------
THIOKOL CORPORATION
a Delaware corporation
By: /s/ Richard L. Corbin
---------------------
Name: Richard L. Corbin
-----------------
Title: Senior Vice President
---------------------
-9-