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EXHIBIT 99.2
EXECUTION COPY
TIMET CAPITAL TRUST I
6-5/8% Convertible Preferred Securities
Beneficial Unsecured Convertible Securities (BUCS)
(Liquidation Amount $50.00 per Convertible Preferred Security)
Guaranteed to a Limited Extent by, and
Convertible into the Common Stock of,
TITANIUM METALS CORPORATION
REGISTRATION AGREEMENT
New York, New York
November 20, 1996
Salomon Brothers Inc
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
Incorporated
As Representatives of the Initial Purchasers
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
TIMET Capital Trust I, a Delaware statutory business trust
(the "Trust"), and Titanium Metals Corporation, a Delaware corporation (the
"Company"), as sponsor of the Trust and as guarantor, propose to issue and sell
to certain initial purchasers (the "Initial Purchasers"), for whom you are
acting as representatives (the "Representatives"), upon the terms set forth in
a purchase agreement of even date herewith (the "Purchase Agreement") its
6-5/8% Convertible Preferred Securities, Beneficial Unsecured Convertible
Securities (BUCS), liquidation amount $50.00 per Convertible Preferred Security
(the "Convertible Preferred Securities") (the "Initial Placement"). As an
inducement to the Initial Purchasers to enter into the Purchase Agreement and
in satisfaction of a condition to your obligations thereunder, the Trust and
the Company agree with you, (i) for your benefit and the benefit of the other
Initial Purchasers and (ii) for the benefit of
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the holders (each such holder and each Initial Purchaser a "Holder" and
together, the "Holders") from time to time of the Convertible Preferred
Securities, the 6-5/8% Convertible Junior Subordinated Debentures Due 2026 (the
"Debentures") and the Common Stock, par value $.01 per share (the "Common
Stock"), of the Company issuable upon conversion of the Convertible Preferred
Securities or the Debentures (collectively, together with the Guarantee of the
Company of the Convertible Preferred Securities (the "Securities"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Holder" has the meaning set forth in the preamble hereto.
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"Initial Placement" has the meaning set forth in the preamble
hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of securities registered under a Shelf Registration
Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the securities covered by such Shelf
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Trust and the Company pursuant to the provisions of Section 2
hereof which covers some or all of the Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
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2. Shelf Registration.
(a) The Trust and the Company shall prepare and, not later
than 90 days following the Closing Date, shall file with the Commission and
thereafter shall use their best efforts to cause to be declared effective under
the Act, not later than 180 days following the Closing Date, a Shelf
Registration Statement relating to the offer and sale of the Securities by the
Holders from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement;
provided, however, that no Holder shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder is in
compliance with Section 3(m) hereof.
(b) The Trust and the Company shall each use its best efforts
(i) to keep the Shelf Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by Holders for a period
of three years from the Closing Date or such shorter period that will terminate
upon the earlier of the following: (A) when all the Convertible Preferred
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement, (B) when all Debentures issued to Holders
in respect of Convertible Preferred Securities that had not been sold pursuant
to the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, (C) when all shares of Common Stock issued upon
conversion of any such Convertible Preferred Securities or any such Debentures
that had not been sold pursuant to the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement and (D) when, in the written
opinion of counsel to the Trust and the Company, all outstanding Securities may
be sold without registration under the Act (in any case, such period being
called the "Shelf Registration Period") and (ii) after the effectiveness of the
Shelf Registration Statement, promptly upon the request of any Holder to take
any action reasonably necessary to register the sale of any Securities of such
Holder and to identify such Holder as a selling securityholder. The Trust and
the Company shall be deemed not to have used their best efforts to keep the
Shelf Registration Statement effective during the requisite period if either
the Trust or the Company voluntarily takes any action that would result in
Holders of securities covered thereby not being able to offer and sell such
securities during that period, unless (i) such action is required by
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applicable law, or (ii) such action is taken in accordance with Section 2(c)
hereof, and, in either case, so long as the Company promptly thereafter
complies with the requirements of Section 3(i) hereof, if applicable.
(c) The Trust and the Company may suspend the use of the
Prospectus for a period not to exceed 30 days in any three month period or two
periods not to exceed an aggregate of 60 days in any 12 month period for bona
fide business reasons, including the acquisition or divestiture of assets,
public filings with the Commission, pending corporate developments and similar
events.
3. Registration Procedures. In connection with any Shelf
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to you, prior to
the filing thereof with the Commission, a copy of any Shelf
Registration Statement, and each amendment thereof and each amendment
or supplement, if any, to the Prospectus included therein and shall
use their best efforts to reflect in each such document, when so filed
with the Commission, such comments as you reasonably may propose.
(b) The Trust and the Company shall take such action as may
be necessary so that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material respects with
the Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, 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 and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
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(c) (1) The Trust and the Company shall advise you and the
Holders and, if requested by you or any such Holder, confirm such
advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information.
(2) The Trust and the Company shall advise you and the
Holders and, if requested by you or any such Holder, confirm such
advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Trust or the Company of
any notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus
pursuant to Section 2(c) hereof or of the happening of any
event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Trust and the Company shall use their best efforts to
obtain the withdrawal of any order
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suspending the effectiveness of any Shelf Registration Statement at
the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto
(including any reports or other documents incorporated therein by
reference), including financial statements and schedules, and, if the
Holder so requests in writing, any exhibits so requested (including
those incorporated by reference).
(f) The Trust and the Company shall, during the Shelf
Registration Period, deliver to each Holder of securities included
within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request;
and the Trust and the Company consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the securities
covered by the Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of securities pursuant to any Shelf
Registration Statement, the Trust and the Company shall register or
qualify or cooperate with the Holders of securities included therein
and their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Shelf Registration
Statement; provided, however, that neither the Trust nor the Company
will be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
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(h) Unless the applicable Securities shall be in book-entry
only form, the Trust and the Company shall cooperate with the Holders
of Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Holders may
request prior to sales of securities pursuant to such Shelf
Registration Statement.
(i) Upon the occurrence of any event contemplated by
paragraph (c)(2)(iii) above, the Trust and the Company shall promptly
prepare a post-effective amendment to any Shelf Registration Statement
or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to purchasers
of the securities included therein, the Prospectus will not 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. If the
Trust or the Company notifies the Holders of the occurrence of any
event contemplated by paragraph 3(c)(2)(iii) above, the Holders shall
suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made.
(j) The Trust and the Company shall use their best efforts to
cause the Depository Trust Company ("DTC") on the first business day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Securities any designation
indicating that the Securities are "restricted securities", which
efforts shall include delivery to DTC of a letter executed by the
Trust and the Company substantially in the form of Exhibit A hereto
and (ii) any other stop or restriction on DTC's system with respect to
the Securities. In the event the Trust and the Company are unable to
cause DTC to take the actions described in the immediately preceding
sentence, the Company shall take such actions as Salomon Brothers Inc
may reasonably request to provide, as soon as practicable, a CUSIP
number for the Securities registered under such Shelf Registration
Statement and to cause such CUSIP number to be assigned to the
Securities (or to the maximum aggregate
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principal amount of the Securities to which such number may be
assigned). Upon compliance with the foregoing requirements of this
Section 3(j), the Trust and the Company shall provide the Trustee with
printed certificates for such Securities, in a form eligible for
deposit with DTC.
(k) The Trust and the Company shall use their best efforts to
comply with all applicable rules and regulations of the Commission and
shall make generally available to their security holders as soon as
practicable after the effective date of the applicable Shelf
Registration Statement an earnings statement satisfying the provisions
of Section 11(a) of the Act.
(l) The Trust and the Company shall use their best efforts to
cause the Indenture, the Declaration and the Guarantee to be qualified
under the Trust Indenture Act in a timely manner.
(m) The Trust and the Company may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Trust and the Company such information regarding the
Holder and the distribution of such securities as the Trust and the
Company may from time to time reasonably require for inclusion in such
Shelf Registration Statement and the Trust and the Company may exclude
from such registration the Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such
request.
(n) The Trust and the Company shall, if requested, use their
best efforts to promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement (i) such
information as the Majority Holders or, if the Securities, Debentures
or Common Stock are being sold in an underwritten offering, as the
Managing Underwriters and the Majority Holders reasonably agree should
be included therein and provide to the Trust and the Company in
writing for inclusion in the Shelf Registration Statement or
Prospectus, and (ii) such information as a Holder may provide from
time to time to the Trust and the Company in writing for inclusion in
a Prospectus or any Shelf Registration Statement concerning such
Holder and the distribution of such Holder's Securities, Debentures
and Common Stock and,
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in either case, shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after
being notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Trust and the Company shall enter into such customary
agreements (including underwriting agreements) and take all other
appropriate actions in order to expedite or facilitate the
registration or the disposition of the Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less
favorable than those set forth in Section 5 (or such other provisions
and procedures acceptable to the Majority Holders and the Managing
Underwriters, if any) with respect to all parties to be indemnified
pursuant to Section 5.
(p) The Trust and the Company shall (i) make reasonably
available for inspection by the Holders of securities to be registered
thereunder, any underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Trust and the Company and its subsidiaries; (ii)
cause the Company's officers, directors and employees and any relevant
trustee to supply all relevant information reasonably requested by the
Holders or any such underwriter, attorney, accountant or agent in
connection with any such Shelf Registration Statement as is customary
for similar due diligence examinations; provided, however, that any
information that is designated in writing by the Trust and the
Company, in good faith, as confidential at the time of delivery of
such information shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a
third party without an accompanying obligation of confidentiality; and
provided further that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on
behalf of the Holders and the other parties entitled thereto by one
counsel designated by and on behalf of
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such Holders and other parties; (iii) make such representations and
warranties to the Holders of securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily
made by the Company to underwriters in primary underwritten offerings
and covering matters including, but not limited to, those set forth in
the Purchase Agreement; (iv) obtain opinions of counsel to the Trust
and the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters as are customarily
covered in opinions requested in the Company's underwritten offerings
and such other matters as may be reasonably requested by such Holders
and underwriters (it being agreed that the matters to be covered by
such counsel shall include, without limitation, as of the date of the
opinions and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case
may be, a statement by such counsel regarding the absence from such
Shelf Registration Statement and the prospectus included therein, as
then amended or supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading);
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Trust and the Company
(and, if necessary, any other independent certified public accountants
of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are
required to be, included in the Shelf Registration Statement),
addressed to each selling Holder of securities registered thereunder
and the underwriters, if any, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings by the Company; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 3(i) and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Trust and the
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Company. The foregoing actions set forth in clauses (iii), (iv), (v)
and (vi) of this Section 3(p) shall be performed at (A) the
effectiveness of such Shelf Registration Statement and (B) each
closing under any underwriting or similar agreement as and to the
extent required thereunder.
(q) The Trust and the Company will use their best efforts to
cause the Common Stock relating to such Shelf Registration Statement
to be listed on each securities exchange, if any, and quoted on each
automatic quotation system, if any, on which any shares of Common
Stock are then listed or quoted.
(r) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and
the By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Trust and the Company will assist
such broker-dealer in complying with the requirements of such Rules
and By-Laws, including, without limitation, by (A) if such Rules or
By-Laws, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in
the preparation of the Shelf Registration Statement relating to such
Securities, to exercise usual standards of due diligence in respect
thereto, (B) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 5 hereof and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules of Fair Practice of the
NASD.
(s) The Trust and the Company shall use their best efforts to
take all other steps necessary to effect the registration, offering
and sale of the securities covered by the Shelf Registration Statement
contemplated hereby.
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(t) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, the Trust and the Company will, during any period in which it is
not subject to and in compliance with Section 13 or 15(d) of the
Exchange Act, provide to each holder of such restricted securities and
to each prospective purchaser (as designated by such holder) of such
restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4)
under the Securities Act. This covenant is intended to be for the
benefit of the holders, and the prospective purchasers designated by
such holders, from time to time of such restricted securities.
4. Registration Expenses. The Company shall bear all
expenses incurred in connection with the performance of the Trust's and its
obligations under Sections 2 and 3 hereof and shall reimburse the Holders for
the reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for the Holders in connection therewith.
5. Indemnification and Contribution. (a) In connection with
any Shelf Registration Statement, the Trust and the Company, jointly and
severally, agree to indemnify and hold harmless each Holder of securities
covered thereby (including each Initial Purchaser), the directors, officers,
employees and agents of each such Holder and each person who controls any such
Holder within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement as originally
filed or in any amendment thereof, or in any preliminary Prospectus or
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with
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investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) the Trust and the Company will not be liable in any
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Trust and the Company by or on behalf
of any such Holder specifically for inclusion therein and (ii) such indemnity
with respect to any untrue statement or omission in any preliminary prospectus
relating to a Shelf Registration Statement shall not inure to the benefit of
any Holder from whom the person asserting any such loss, claim, damage or
liability purchased the Securities that are the subject thereof, to the extent
that any such loss, claim, damage or liability of such Holder occurs under the
circumstances where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment or the parties shall have
agreed that (w) the Trust and the Company had previously furnished copies of
the final prospectus to such Holder, (x) delivery of the final prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the preliminary prospectus was
completely corrected in the final prospectus and (z) there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus. This indemnity
agreement will be in addition to any liability which the Trust and the Company
may otherwise have.
The Trust and the Company, jointly and severally, also agree
to indemnify or contribute to Losses (as defined below) of, as provided in
Section 5(d), any underwriters of securities registered under a Shelf
Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 5(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 3(o)
hereof.
(b) Each Holder of securities covered by a Shelf Registration
Statement (including each Initial Purchaser) severally agrees to indemnify and
hold harmless (i) the Trust and the Company, (ii) each of the Company's
directors, (iii) each of the Company's officers who signs such Shelf
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Registration Statement and (iv) each person who controls the Trust or the
Company within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Trust and the Company to each such
Holder, but only with reference to written information relating to such Holder
furnished to the Trust and the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 or notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ one separate counsel (and, in addition, one local counsel
in any relevant jurisdiction for an indemnified party), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel (and local counsel) if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are
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different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. An indemnifying party will not, without the prior
written consent of the indemnified parties (not to be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Shelf Registration Statement which resulted in such
Losses; provided, however, that in no case shall the Initial Purchasers be
responsible, in the aggregate, for any amount in excess of the purchase
discount or commission applicable to such Security, as set forth on the cover
page of the Final Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
securities purchased by such underwriter under the Shelf Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding
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sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Trust and the Company shall be deemed to be equal to the total
net proceeds from the Initial Placement (before deducting expenses) as set
forth on the cover page of the Final Memorandum. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions as set forth on the cover page of the Final Memorandum.
Benefits received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Shelf Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other
hand. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 5, each
person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder
shall have the same rights to contribution as such Holder, and each person who
controls the Trust or the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Shelf
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder, the Trust or the Company or any of the officers, directors or
controlling persons referred to in Section 5 hereof, and will survive the sale
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by a Holder of securities covered by a Shelf Registration Statement.
6. Miscellaneous.
(a) No Conflicting Agreements. The Trust and the Company
have not, as of the date hereof, entered into, nor shall they, on or
after the date hereof, enter into, any agreement with respect to their
securities or otherwise that conflicts with the provisions hereof;
provided, however, that the foregoing shall not prevent Company from
allowing beneficiaries of registration rights in existence on the date
hereof with respect to the Common Stock to utilize any Shelf
Registration Statement filed hereunder on such customary and
reasonable terms as counsel for the Company shall determine.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Trust and the Company have obtained the written consent of the Holders
of at least a majority of the then outstanding aggregate principal
amount of Securities; provided that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Trust and the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment,
qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver
or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Shelf Registration Statement
and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis
of securities being sold rather than registered under such Shelf
Registration Statement.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class
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mail, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given
by such holder to the Company in accordance with the
provisions of this Section 6(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar, with a copy in like manner to
Salomon Brothers Inc;
(2) if to you, initially at the respective addresses
set forth in the Purchase Agreement; and
(3) if to the Trust or the Company, initially at its
address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers, the Trust or the Company by notice to
the other may designate additional or different addresses for
subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each
of the parties, including, without the need for an express assignment
or any consent by the Trust or the Company thereto, subsequent Holders
of Securities. The Company hereby agrees to extend the benefits of
this Agreement to any Holder of Securities and any such Holder may
specifically enforce the provisions of this Agreement as if an
original party hereto.
(e) Counterparts. This agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
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(g) Governing Law. This agreement shall be governed by and
construed in accordance with the internal laws of the State of New
York applicable to agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of
any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by
law.
(i) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal
amount of Securities is required hereunder, Securities held by the
Trust or the Company or their respective Affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed
to be Affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
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Please confirm that the foregoing correctly sets forth the
agreement among the Trust, the Company and you.
Very truly yours,
TIMET CAPITAL TRUST I
By:
------------------------
Name:
Title:
TITANIUM METALS CORPORATION,
By:
------------------------
Name:
Title:
Accepted in New York, New York
November 20, 1996
Salomon Brothers Inc
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
Incorporated
By: SALOMON BROTHERS INC,
By
-------------------------
Name:
Title:
For themselves and the other
Initial Purchasers named in
the Purchase Agreement.
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EXHIBIT A
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
TIMET Capital Trust I
Titanium Metals Corporation
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: 6-5/8% Convertible Preferred Securities (the
"Securities") of TIMET Capital Trust I, guaranteed to
a limited extent and convertible into the common
stock of Titanium Metals Corporation
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended, with regard to all of the Securities
referenced above. Accordingly, there is no long any restriction as to whom
such Securities may be sold and any restrictions on the CUSIP designation are
no longer appropriate and may be removed. I understand that upon receipt of
this letter, DTC will remove any stop or restriction on its system with respect
to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
TIMET Capital Trust I
by:
-------------------------
Authorized Officer
Titanium Metals Corporation
by:
-------------------------
Authorized Officer
