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Exhibit 99.2
ALCOA INC.
Debt Securities
and Warrants to Purchase
Debt Securities
UNDERWRITING AGREEMENT
January 22, 2007
1. Introductory. (a) Alcoa Inc., a Pennsylvania
corporation ("Company"), proposes to issue and sell from time to
time certain of its debt securities ("Debt Securities") and
warrants ("Warrants") to purchase Debt Securities ("Warrant Debt
Securities"), which Debt Securities or Warrant Debt Securities may
be convertible into or exchangeable for shares of the
Company’s common stock, par value $1.00 per share ("Common
Stock"), registered under the registration statements referred to
in Section 2(a) ("Registered Securities"). The Debt Securities
and Warrant Debt Securities will be issued under an indenture,
dated as of September 30, 1993 ("Indenture"), between the
Company and The Bank of New York Trust Company, N.A., as successor
in interest to J.P. Morgan Trust Company, N.A. (formerly known as
Chase Manhattan Trust Company, National Association, as successor
to PNC Bank, National Association), as Trustee, in one or more
series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms, with all
such terms for any particular series being determined at the time
of sale. The Warrants will be issued under Warrant Agreements (each
a "Warrant Agreement"), between the Company and a bank or trust
company, as Warrant Agent, on such terms as shall be determined at
the time of sale. Particular series of the Debt Securities and
Warrants will be sold pursuant to the Terms Agreement referred to
in Section 3, for resale in accordance with the terms of
offering determined at the time of sale. Any Debt Securities and
any Warrants involved in any such offering are hereinafter referred
to as the "Offered Debt Securities" and "Offered Warrants",
respectively, and collectively as the "Securities", and Warrant
Debt Securities issuable upon exercise of Offered Warrants are
hereinafter referred to as the "Offered Warrant Debt Securities".
The firm or firms which agree to purchase the Securities
("Underwriters") and the representative or representatives of the
Underwriters, if any, specified in a Terms Agreement referred to in
Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement
does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in
Sections 2(b), 5(c) and 6 and the second sentence of
Section 3), shall mean the Underwriters.
(b) At or prior to the time when sales of the Securities were
first made (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale
Information"): a Preliminary Prospectus described in the Terms
Agreement, and each "free-writing prospectus" (as defined pursuant
to Rule 405 under the Securities Act of 1933, as amended, and
the rules and regulations of the Securities and Exchange Commission
(the "Commission") thereunder (the "Act") listed in the Terms
Agreement as constituting part of the Time of Sale Information.
(c) The Company acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s
length contractual counterparty to the Company with respect to the
offering of Securities contemplated hereby (including in connection
with determining the terms of the offering) and not as a financial
advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the Representatives nor any other
Underwriter is advising the Company or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no
responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
2. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each
Underwriter that:
(a) The registration statement or registration statements
referred to in the Terms Agreement, including a base prospectus,
relating to the Registered Securities have been filed with the
Commission and have become effective. Each such registration
statement, as amended at the time of any Terms Agreement referred
to in Section 3 and including any information deemed pursuant
to Rule 430A, 430B or 430C under the Act to be part of the
registration statement at the time of its effectiveness, is
hereinafter referred to as a "Registration Statement", and such
Registration Statements are collectively referred to herein as the
"Registration Statements", and the base prospectus relating to the
Registered Securities, as supplemented as contemplated by
Section 3 to reflect the final terms of the Securities and the
Warrant Debt Securities and the terms of offering thereof, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act, is hereinafter referred
to as the "Prospectus". Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus, or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act, as of the effective date of the
Registration Statement or the date of the Preliminary Prospectus or
the Prospectus, as the case may be, and any reference to "amend",
"amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the "Exchange Act") that are deemed to be incorporated by reference
therein.
(b) On each effective date of any Registration Statement
relating to the Registered Securities, such Registration Statement
conformed in all respects to the requirements of the Act, the Trust
Indenture Act of 1939 ("Trust Indenture Act") and the rules and
regulations of the Commission ("Rules and Regulations") and did not
and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and as of
its date and on the Closing Date (as defined below), the
Prospectus
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will conform in all respects to the requirements
of the Act, the Trust Indenture Act and the Rules and Regulations,
and will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except
that the foregoing does not apply to statements in or omissions
from any of such documents based upon written information furnished
to the Company by any Underwriter through the Representatives, if
any, specifically for use therein.
(c) Time of Sale Information. The Time of Sale
Information, at the Time of Sale did not, and at the Closing Date
will not, contain any 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 Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
such Time of Sale Information. No statement of material fact
included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time
of Sale Information that is required to be included in the
Prospectus has been omitted therefrom.
(d) Issuer Free Writing Prospectus. The Company
(including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, made,
used, authorized, approved or referred to and will not prepare,
make, use, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the Act) that
constitutes an offer to sell or solicitation of any offer to buy
the Securities (each such communication by the Company or its
agents and representatives (other than a communication referred to
in clauses (i), (ii) and (iii) below) an "Issuer
Free Writing Prospectus") other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Act or Rule 134 under the Act, (ii) the Preliminary
Prospectus, (iii) the Prospectus, (iv) the documents
listed in the Terms Agreement as constituting the Time of Sale
Information and (v) any electronic roadshow or other written
communications, in each case approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied
in all material respects with the Act, has been or will be (within
the time period specified in Rule 433) filed in accordance
with the Act (to the extent required thereby) and, when taken
together with the Preliminary Prospectus accompanying, or delivered
prior to delivery of, such Issuer Free Writing Prospectus, did not,
and at the Closing Date will not, contain any 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
Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing
Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
any Issuer Free Writing Prospectus.
(e) Status under the Act. The Company is not an
ineligible issuer and is a well-known seasoned issuer, in each case
as defined under the Act, in each case at the times specified in
the Act in connection with the offering of the Securities. The
Company has paid the registration fee for this offering pursuant to
Rule 457 under the Act.
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3. Purchase, Offering and Delivery. The
obligations of the Underwriters to purchase the Securities will be
evidenced by an exchange of facsimile or other written
communications ("Terms Agreement") at the time the Company
determines to sell the Securities. The Terms Agreement, except as
otherwise provided therein, will incorporate by reference the
provisions of this Agreement in their entirety and will specify the
firm or firms which will be Underwriters, the names of any
Representatives, the principal amount of any Offered Debt
Securities (including, if applicable, the number of shares of
Common Stock initially issuable upon conversion or exchange of the
Offered Debt Securities) and the number and certain other terms of
any Offered Warrants (including the principal amount of the related
Offered Warrant Debt Securities and, if applicable, the number of
shares of Common Stock initially issuable upon conversion or
exchange of the Offered Warrant Debt Securities) to be purchased by
each Underwriter, the purchase price to be paid by the
Underwriters, any compensation or commissions to be paid to the
Underwriters, the initial public offering price, the terms of the
Securities and any Offered Warrant Debt Securities not already
specified in the Indenture and the Warrant Agreement, including,
but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements, and whether any of
the Securities may be sold to institutional investors pursuant to
Delayed Delivery Contracts (as defined below) as hereinafter
provided. The Terms Agreement will also specify the time and date
of delivery and payment (such time and date, or such other time not
later than seven full business days thereafter as the
Representatives and the Company agree as the time for payment and
delivery, being herein and in the Terms Agreement referred to as
the "Closing Date"), the place of delivery and payment and any
details of the terms of offering that should be reflected in the
Time of Sale Information and the Prospectus supplement relating to
the offering of the Securities. The obligations of the Underwriters
to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities
for sale as set forth in the Time of Sale Information and the
Prospectus. The Securities delivered to the Underwriters on the
Closing Date will be in definitive form, in such denominations and
registered in such names as the Underwriters may
request.
If the Terms Agreement provides for sales of Securities pursuant
to delayed delivery contracts, the Company authorizes the
Underwriters to solicit offers to purchase Securities pursuant to
delayed delivery contracts substantially in the form of Annex I
attached hereto ("Delayed Delivery Contracts") with such changes
therein as the Company may authorize or approve. Delayed Delivery
Contracts are to be with institutional investors of the types set
forth in the Time of Sale Information and the Prospectus, including
commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions.
On the Closing Date the Company will pay, as compensation, to the
Representatives for the accounts of the Underwriters, the fee set
forth in such Terms Agreement in respect of the principal amount of
Securities to be sold pursuant to Delayed Delivery Contracts
("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of
Delayed Delivery Contracts. If the Company executes and delivers
Delayed Delivery Contracts, the Contract Securities will be
deducted from the Securities to be purchased by the several
Underwriters and (a) in the case of an offering of Debt
Securities with attached Warrants the aggregate principal amount of
Offered Debt Securities and the number of Offered Warrants to be
purchased by each Underwriter shall be reduced pro rata in
proportion to the principal amount of Offered Debt Securities and
(b) in all other cases the aggregate principal amount of
Offered Debt Securities
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and the number of Warrants to be purchased by
each Underwriter shall be reduced pro rata in proportion to the
principal amount of Offered Debt Securities and the number of
Offered Warrants, respectively, in each such case set forth
opposite each Underwriter’s name in such Terms Agreement,
except to the extent that the Representatives determine that such
reduction shall be otherwise and so advise the Company. The Company
will advise the Representatives not later than the business day
prior to the Closing Date of the principal amount of Contract
Securities.
4. Covenants of the Company. The Company covenants and
agrees with the several Underwriters that it will furnish to the
Representatives and Cravath, Swaine & Moore LLP,
counsel for the Underwriters, two signed copies of any Registration
Statement relating to the Registered Securities, including all
exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of
Securities:
(a) The Company will file any Issuer Free Writing Prospectus
(including the Term Sheet in the form attached to the Terms
Agreement) to the extent required by Rule 433 under the Act
and will file the Preliminary Prospectus and the Prospectus with
the Commission pursuant to and in accordance with Rule 424(b) not
later than the time required by such rules.
(b) Prior to the Closing Date, the Company will advise the
Representatives promptly of any proposal to prepare, use,
authorize, approve, refer to or file any Issuer Free Writing
Prospectus or to amend or supplement any of the Registration
Statements or the Prospectus and will afford the Representatives a
reasonable opportunity to comment on any such proposed Issuer Free
Writing Prospectus or amendment or supplement and the Company will
also advise the Representatives promptly of any use, authorization,
approval, reference to or filing of any Issuer Free Writing
Prospectus, the filing of any such amendment or supplement and of
the institution by the Commission of any stop order proceedings or
any proceedings pursuant to Section 8A of the Act in respect
of the Registration Statement or of any parts thereof and will use
its best efforts to prevent the issuance of any such stop order and
to obtain as soon as possible its lifting, if issued.
(c)(1) If, at any time when a prospectus relating to the
Securities, the Offered Warrant Debt Securities and the shares of
Common Stock initially issuable upon conversion or exchange of the
Offered Debt Securities or the Offered Warrant Debt Securities is
required to be delivered under the Act, or required to be delivered
but for Rule 172 under the Act (the "Prospectus Delivery
Period"), any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company
promptly will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance and (2) if at any
time prior to the Closing Date (i) any event shall occur or
condition shall exist as a result of which the Time of Sale
Information as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances, not misleading or (ii) it is
necessary to amend or supplement the Time of Sale Information to
comply with law, the Company will immediately notify the
Underwriters thereof
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and forthwith prepare and, subject to
paragraph (b) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as
the Representatives may designate, such amendments or supplements
to the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or
supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with
law. Neither the Representatives’ consent to, nor the
Underwriters’ delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 5.
(d) As soon as practicable, but not later than 16 months, after
the date of each Terms Agreement, the Company will make generally
available to its security-holders an earnings statement covering a
period of at least 12 months beginning after the later of
(i) the effective date of any registration statement relating
to the Registered Securities, (ii) the effective date of the
most recent post-effective amendment to any of the Registration
Statements to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company’s most
recent Annual Report on Form 1O-K filed with the Commission prior
to the date of such Terms Agreement, which will satisfy the
provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of
the Registration Statements, including all exhibits, any
prospectus, any related preliminary prospectus supplement, any
related Issuer Free Writing Prospectus, any Time of Sale
Information, the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such
quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the
Securities, any Offered Warrant Debt Securities and any shares of
Common Stock initially issuable upon conversion or exchange of the
Offered Debt Securities or the Offered Warrant Debt Securities for
sale and the determination of their eligibility for investment
under the laws of such jurisdictions as the Representatives
designate and will continue such qualifications in effect so long
as required for the distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and,
upon request, to each of the other Underwriters, if any, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish
to the Representatives (i) as soon as available, a copy of
each report or definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to shareholders,
unless they are otherwise available on the Commission’s EDGAR
system, and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably
request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters for any expenses (including reasonable
fees and disbursements of counsel) incurred by them in connection
with qualification of the Registered Securities for sale and
determination of their eligibility for investment under the laws of
such jurisdictions as the Representatives may designate and the
printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Securities, for
the filing fee, if any, of the National Association of Securities
Dealers, Inc. relating
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to the Registered Securities and for expenses
incurred in distributing the Prospectus, any Preliminary
Prospectuses, any Issuer Free Writing Prospectus and any Time of
Sale Information and any preliminary prospectus supplements to
Underwriters.
(i) The Company will not, without the prior consent of the
Underwriters or the Representatives, offer, sell, contract to sell
or otherwise dispose of (i) if the Securities are not
convertible into Common Stock, any securities of the Company (other
than pursuant to director or employee stock or other benefit plans
existing or the conversion of convertible securities outstanding on
the date of such Terms Agreement) which are substantially similar
to its United States dollar-denominated debt securities having a
maturity of more than one year, or (ii) if the Securities are
convertible into Common Stock, shares of Common Stock or any other
securities convertible into shares of Common Stock (other than
pursuant to director or employee stock or other benefit plans
existing or the conversion of convertible securities outstanding on
the date of such Terms Agreement) during the period beginning on
the date of execution of a Terms Agreement with respect to the
Securities and ending on (x) in the case of (i), the later of
the related Closing Date or the date on which any price
restrictions on sale of the Securities are terminated and
(y) in the case of (ii), 30 days following the Closing
Date.
(j) The Company will use its best efforts to maintain the
effectiveness of a registration statement in respect of any Offered
Warrant Debt Securities during the entire period during which any
Offered Warrants may be exercised.
(k) The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing
Prospectus that is not filed with the Commission in accordance with
Rule 433 under the Securities Act.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Securities will be subject to the accuracy of the representations
and warranties on the part of the Company herein, to the accuracy
of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions
precedent:
(a) The Representatives shall have received a letter, dated the
date of the Terms Agreement, of PricewaterhouseCoopers LLP,
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and
Regulations thereunder and stating in effect that:
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(i) in their opinion the financial statements and schedules
examined by them and included in the Time of Sale Information
relating to the Registered Securities, as amended at the date of
such letter, comply in form in all material respects with the
applicable accounting requirements of the Act, the Exchange Act and
the related published Rules and Regulations; and
(ii) they have compared certain agreed dollar or tonnage amounts
(or percentages derived from such dollar or tonnage amounts) and
other
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financial information contained in such Time of
Sale Information (in each case to the extent that such dollar or
tonnage amounts, percentages and other financial information are
derived from the general accounting records of the Company and
consolidated subsidiaries which are subject to the internal
controls of the accounti
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