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Exhibit 1.1
USX CORPORATION
5,000,000 DECS(SM) (Debt Exchangeable for Common Stock(SM))*
_______ % Exchangeable Notes Due February 1, 2000
(Subject to Exchange into Shares of Common Stock,
par value $.01 per share, of RMI Titanium Company)
Underwriting Agreement
New York, New York
_______, 1996
Salomon Brothers Inc
Xxxxxx Brothers Inc.
as Representatives of the several Underwriters
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
USX Corporation, a Delaware corporation ("USX"), proposes to
sell to the underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, an aggregate of
5,000,000 DECS (Debt Exchangeable for Common Stock) consisting of its _____%
Exchangeable Notes Due February 1, 2000 (the "Underwritten DECS"), to be issued
under an indenture dated as of March 15, 1993, between USX and PNC Bank,
National Association, as trustee (the "Trustee"), as amended to the date hereof
by the First Supplemental Indenture thereto dated as of _________, 1996 (as so
amended, the "Indenture"). In addition, the Underwriters will have an option
to purchase up to 483,600 DECS (the "Option DECS" and, together with the
Underwritten DECS, the "DECS"). At maturity (including as a result of
acceleration or otherwise), the DECS will be mandatorily exchanged by USX into
shares of common stock, par value $.01 per share (the "RMI Common Stock"), of
RMI Titanium Company, an Ohio corporation ("RMI") (or, at USX's option under
the circumstances described in the Final USX Prospectus (as defined herein),
cash with an equal value) at the rate specified in the Final USX Prospectus.
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* Plus an option to purchase from USX Corporation, up to 483,600 additional
DECS to cover over-allotments.
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In connection with the foregoing and pursuant to the
Registration Rights Agreement dated August 21, 1996, between RMI
Titanium Company and USX Corporation (the "Registration Rights
Agreement"), RMI has filed with the Securities and Exchange Commission
(the "Commission") a registration statement with respect to 5,000,000
shares (the "Underwritten Shares") of RMI Common Stock, in respect of
the Underwritten DECS plus an additional 483,600 shares (the "Option
Shares" and, together with the Underwritten Shares, the "Shares") of
RMI Common Stock in respect of the Option DECS, for sale by USX as a
selling stockholder (to the extent USX shall so elect to deliver RMI
Common Stock to holders of the DECS at maturity thereof pursuant to
the terms of the DECS), which registration statement is referred to in
Section 2 of this Agreement.
Certain terms used in this Agreement are defined in paragraph
(c) of Section 1 and paragraph (c) of Section 2.
1. Representations and Warranties of USX. USX represents and
warrants to, and agrees with, each Underwriter and RMI as set forth below in
this Section 1.
(a) USX meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Commission a registration statement (file number 33-52937) on Form
S-3, including a basic prospectus (the "Basic USX Prospectus"), for
the registration under the Act of the offering and sale of the DECS.
USX may have filed one or more amendments thereto, and may have used a
Preliminary Final USX Prospectus (as defined herein), each of which
has previously been furnished to you. Such registration statement, as
so amended, has become effective. Although the Basic Prospectus may
not include all the information with respect to the DECS and the
offering thereof required by the Act and the rules thereunder to be
included in the Final USX Prospectus, the Basic USX Prospectus
includes all such information required by the Act and the rules
thereunder with respect to such a prospectus. A Preliminary Final USX
Prospectus was filed with the Commission pursuant to Rule 424(b)(2) on
November 20, 1996. USX will next file with the Commission pursuant to
Rule 424(b)(2) a final supplement to the Basic USX Prospectus, which
supplement relates to the DECS and the offering thereof. As filed,
such final prospectus supplement shall include all required
information with respect to the DECS and the offering thereof and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic USX Prospectus and any Preliminary Final USX Prospectus) as USX
has advised you, prior to the Execution Time, will be included or made
therein. The registration statement, at the Execution Time, will meet
the requirement set forth in Rule 415(a)(1)(x) under the Act.
(b) On the USX Effective Date, the USX Registration Statement
did and/or will, and when the Final USX Prospectus is first filed in
accordance with Rule 424(b) and on the Closing Date, the Final USX
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules thereunder; on the USX Effective Date, the USX
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the USX Effective Date and on
the Closing Date, the Indenture did or will comply in all material
respects with the applicable requirements of the
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Trust Indenture Act and the rules thereunder; and, on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Final USX
Prospectus (together with any supplement thereto) will not include 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,
however, that USX makes no representations or warranties as to (A)
that part of the USX Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee, (B) the information contained in or
omitted from the USX Registration Statement or the Final USX
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to USX by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the USX Registration Statement or the Final USX
Prospectus (or any supplement thereto) or (C) the information
contained in or omitted from the USX Registration Statement or the
Final USX Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to USX by or on
behalf of RMI specifically for inclusion in the USX Registration
Statement or the Final USX Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "USX Effective Date"
shall mean each date that the USX Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and the date of filing of USX's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered
by the parties hereto. "Basic USX Prospectus" shall mean the
prospectus referred to in paragraph (a) of this Section 1 contained in
the USX Registration Statement at the USX Effective Date.
"Preliminary Final USX Prospectus" shall mean any preliminary
prospectus supplement to the Basic USX Prospectus which describes the
DECS and the offering thereof, is used prior to filing the Final USX
Prospectus and is filed, together with the Basic USX Prospectus,
pursuant to Rule 424(b). "Final USX Prospectus" shall mean the Basic
USX Prospectus as supplemented by the prospectus supplement relating
to the DECS that is first filed pursuant to Rule 424(b) after the
Execution Time. "USX Registration Statement" shall mean the
registration statement referred to in paragraph (a) of this Section 1,
including incorporated documents, exhibits and financial statements,
as amended at the Execution Time and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended. "Rule 415,"
"Rule 424" and "Regulation S-K" refer to such rules or regulation
under the Act. Any reference herein to the USX Registration
Statement, the Basic USX Prospectus, any Preliminary Final USX
Prospectus or the Final USX Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or
before the USX Effective Date or the issue date of the Basic USX
Prospectus, any Preliminary Final USX Prospectus or the Final USX
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the USX
Registration Statement, the Basic USX Prospectus, any Preliminary
Final USX Prospectus or the Final USX Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the USX Effective Date, or the issue date of the Basic USX
Prospectus, any Preliminary Final USX Prospectus or the Final USX
Prospectus, as the case may be, which document is deemed to be
incorporated therein by reference.
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(d) To the extent that any statements or omissions made in the
RMI Registration Statement or the RMI Prospectus (or any supplement
thereto) are made in reliance upon and in conformity with written
information furnished to RMI by USX specifically for inclusion
therein, (i) on the RMI Effective Date, the RMI Registration Statement
did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading and
(ii) on the RMI Effective Date, the RMI Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date (as defined in
Section 4 hereof), the RMI Prospectus (together with any supplement
thereto) will not, include 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; and no facts have come to the attention of
USX which lead USX to believe, or should lead it to believe, that (i)
on the RMI Effective Date, the RMI Registration Statement did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading and (ii) on the
RMI Effective Date, the RMI Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the RMI Prospectus (together with
any supplement thereto) will not, include 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.
(e) USX has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of RMI to facilitate the sale or resale of the DECS or the
Shares, and has not effected any sales of RMI Common Stock (other than
sales of RMI Common Stock prior to May 1996 pursuant to Rule 144 under
the Act) which, if effected by the issuer, would be required to be
disclosed in response to Item 701 of Regulation S-K.
(f) Neither USX nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the USX Registration Statement any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth in or contemplated by the USX Registration
Statement or the Final USX Prospectus; and, since the respective dates
as of which information is given in the USX Registration Statement,
there has not been any material change in the capital stock or
long-term debt of USX or any of its subsidiaries or any material
adverse change, or any development likely to result in a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of USX and its subsidiaries, otherwise than as set forth in
or contemplated by the Final USX Prospectus.
(g) USX has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with all corporate power and authority to own its properties
and conduct its business as described in the USX Registration
Statement and the Preliminary Final USX Prospectus.
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(h) USX has an authorized capitalization as set forth in the
USX Registration Statement and the Preliminary Final USX Prospectus,
and all of the issued shares of capital stock of USX have been duly
and validly authorized and issued and are fully paid and
non-assessable;
(i) The DECS have been duly authorized, and, when the DECS
are issued and delivered pursuant to this Agreement, such DECS will
have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of USX entitled to
the benefits provided by the Indenture, which will be substantially in
the form filed as an exhibit to the USX Registration Statement, the
Indenture has been duly authorized and duly qualified under the Trust
Indenture Act and, on the Closing Date (as defined in Section 4
hereof), the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture conforms, and the
DECS will conform, to the descriptions thereof contained in the Final
USX Prospectus.
(j) The issue and sale of the DECS and the compliance by USX
with all of the provisions of the DECS, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which USX is a party or by which USX is
bound or to which any of the property or assets of USX is subject, nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of USX or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over USX or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the DECS or the consummation by USX of the
transactions contemplated by this Agreement or the Indenture, except
such as have been, or will have been prior to the Closing Date,
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the DECS by the Underwriters.
(k) Other than as set forth in the USX Registration Statement
and the Preliminary Final USX Prospectus, there are no legal or
governmental proceedings pending to which USX or any of its
subsidiaries is a party or of which any property of USX or any of its
subsidiaries is the subject which, if determined adversely to USX or
any of its subsidiaries, would have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of USX and its subsidiaries; and, to the best of USX's
knowledge, no such proceedings are threatened by governmental
authorities or by others.
(l) Immediately prior to any delivery of Shares or any
Reported Securities (as defined in the Final USX Prospectus) pursuant
to the DECS, USX will be the lawful owner of such Shares or Reported
Securities, as the case may be, and will convey good and valid title
to such Shares or Reported Securities, as the case may be, upon such
delivery, free and clear of all liens, encumbrances, equities and
claims whatsoever.
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2. Representations and Warranties of RMI. RMI represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 2.
(a) RMI meets the requirements for use of Form S-3 under the
Act and has filed with the Commission a registration statement (file
number 333-16101) on such Form, including a related preliminary
prospectus, for the registration under the Act of the offering and
sale of the Shares. RMI may have filed one or more amendments
thereto, including the related preliminary prospectus, each of which
has previously been furnished to you. RMI will next file with the
Commission one of the following: (i) prior to effectiveness of such
registration statement, a further amendment to such registration
statement, including the form of final prospectus or (ii) a final
prospectus in accordance with Rules 430A and 424(b)(1) or (4). In the
case of clause (ii), RMI has included in such registration statement,
as amended at the RMI Effective Date, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be
included in the RMI Prospectus with respect to the Shares and the
offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the Shares and the offering thereof and, except to the
extent the Representatives shall agree to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary RMI Prospectus) as RMI has advised you, prior to the
Execution Time, will be included or made therein.
(b) (i) On the RMI Effective Date, the RMI Registration
Statement did or will and when the RMI Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the
RMI Prospectus (and any supplement thereto) will, conform in all
material respects with the applicable requirements of the Act, the
Exchange Act and the respective rules thereunder;
(ii) On the RMI Effective Date, the RMI Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the RMI Effective Date, the RMI Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the RMI
Prospectus (together with any supplement thereto) will not, include
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, however, that no representation or warranty is made as to
the information contained in or omitted from the RMI Registration
Statement or the RMI Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to RMI (A) by or on behalf of any Underwriter through the
Representatives or (B) by USX, in either case, specifically for
inclusion in the RMI Registration Statement or the RMI Prospectus (or
any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "RMI Effective Date"
shall mean each date that the RMI Registration Statement and any
post-effective amendment or amendments thereto became or become
effective. "Preliminary RMI Prospectus" shall mean any preliminary
prospectus referred to in paragraph (a) of this Section 2 and any
preliminary prospectus included in the RMI
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Registration Statement at the RMI Effective Date that omits Rule 430A
Information. "RMI Prospectus" shall mean the prospectus relating to
the Shares that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Shares
included in the RMI Registration Statement at the RMI Effective Date.
"RMI Registration Statement" shall mean the registration statement
referred to in paragraph (a) of this Section 2 including incorporated
documents, exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so
amended. Such term shall include any Rule 430A Information deemed to
be included therein at the RMI Effective Date as provided by Rule
430A. "Rule 430A" refers to such rule under the Act. "Rule 430A
Information" means information with respect to the DECS (or the
Shares) and the offering thereof permitted to be omitted from the RMI
Registration Statement when it becomes effective pursuant to Rule
430A. Any reference herein to the RMI Registration Statement,
Preliminary RMI Prospectus or the RMI Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange
Act on or before the RMI Effective Date or the issue date of a
Preliminary RMI Prospectus or the RMI Prospectus, as the case may be;
and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the RMI Registration Statement, any
Preliminary RMI Prospectus or the RMI Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the RMI Effective Date, or the issue date of any Preliminary RMI
Prospectus or the RMI Prospectus, as the case may be, deemed to be
incorporated therein by reference. The term "RMI Material Adverse
Effect" shall mean any material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of RMI and its subsidiaries taken as a whole.
(d) RMI and each of its subsidiaries (as defined in Rule 405
under the Act) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification (other than
those jurisdictions in which the failure to so qualify would not
reasonably be expected to have a material adverse effect on RMI or RMI
and its subsidiaries taken as a whole), and have all power and
authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged; and none of the
subsidiaries of RMI is a "significant subsidiary", as such term is
defined in Rule 405 under the Act.
(e) RMI has an authorized capitalization as set forth in the
RMI Prospectus, and all of the issued shares of capital stock of RMI
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
RMI Prospectus; and all of the issued shares of capital stock of each
subsidiary of RMI have been duly and validly authorized and issued and
are fully paid and non-assessable and are owned directly or indirectly
by RMI, free and clear of all liens, encumbrances, equities or claims;
provided, however, that the Company only owns a 40% interest in
Reamet, S.A.
(f) This Agreement has been duly authorized, executed and
delivered by RMI.
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(g) The execution, delivery and performance of this Agreement
by RMI and the consummation of the transactions contemplated hereby
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which RMI or any of its subsidiaries is a party or by
which RMI or any of its subsidiaries is bound or to which any of the
properties or assets of RMI or any of its subsidiaries is subject and
which is material to RMI and its subsidiaries taken as a whole, nor
will such actions result in any violation of the provisions of the
Amended Articles of Incorporation or Amended Code of Regulations of
RMI or the charter or by-laws of any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over RMI or any of its subsidiaries
or any of their properties or assets; and except for the registration
of the Shares under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws
in connection with the purchase and distribution of the DECS by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement by RMI and the consummation of the transactions contemplated
hereby.
(h) Neither RMI nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the RMI Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree which was
material to RMI and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the RMI Prospectus; and, since such
date, there has not been any change in the capital stock (other than
the grant and exercise of options pursuant to RMI's stock option plans
and the issuance of shares of RMI Common Stock on May 7, 1996 in
connection a registered public offering thereof) or changes in
long-term debt (other than under RMI's Amended and Restated Bank
Credit Agreement, dated May 3, 1995, and the Credit Facility (as
defined in the RMI Prospectus)) of RMI or any of its subsidiaries or
any material adverse change in the consolidated financial position,
stockholders' equity, results of operations, business or prospects of
RMI and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(i) Except as described in the RMI Prospectus, there are
no legal or governmental proceedings pending to which RMI or any of
its subsidiaries is a party or of which any property or asset of RMI
or any of its subsidiaries is the subject which, if determined
adversely to RMI or any of its subsidiaries, could reasonably be
expected to have a RMI Material Adverse Effect; and to the best of
RMI's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(j) RMI is not and, after giving effect to the offering and
sale of the DECS and the Shares, will not be, an "investment company"
or an entity "controlled" by an "investment company," as such terms
are defined in the Investment Company Act.
(k) Except as described in the RMI Prospectus, there has been
no storage, disposal, generation, manufacture, refinement,
transportation, handling, treatment, discharge, emission, or any other
release of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by RMI or any of its subsidiaries (or, to the knowledge of
RMI, any of their predecessors in
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interest or any other entity for whose acts or omissions RMI or any
subsidiary is or may be liable) at, upon or from any of the properties
now or previously owned or leased by RMI or its subsidiaries, or, to
the knowledge of RMI, at, upon or from any other properties, in
violation of any applicable law, ordinance, rule (including, without
limitation, the rule of common law), regulation, order, judgment,
decree or permit or which would give rise to any liability under any
applicable law, ordinance, rule, regulation, order, judgment, decree
or permit, except for any violation or liability which would not have,
or could not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a RMI
Material Adverse Effect; except as disclosed in the RMI Prospectus,
there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes, hazardous substances
or other substances, with respect to which RMI or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a RMI Material Adverse
Effect; and the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations
with respect to environmental protection.
(l) RMI and each of its subsidiaries have good and sufficient
title in fee simple to all real property and good and sufficient title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except those that (i) are
described in the Prospectus, (ii) exist as a result of the Credit
Facility, or (iii) do not materially affect the value of such property
and do not materially interfere with the use made or proposed to be
made of such property by RMI and its subsidiaries; and all real
property and buildings held under lease by RMI and its subsidiaries
are held by them under valid, existing and enforceable leases, with
such exceptions as are not material and do not interfere with the use
made or proposed to be made of such property and buildings by RMI and
its subsidiaries.
(m) Except for the Registration Rights Agreement, there are
no contracts, agreements or understandings between RMI and any person
granting such person the right to require RMI to file a registration
statement under the Act with respect to any securities of RMI owned or
to be owned by such person or to require RMI to include such
securities in the securities registered pursuant to the RMI
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by RMI under the Act.
(n) Neither RMI nor any of its subsidiaries (i) is in
violation of its charter or by-laws in any material respect, (ii) is
in default in any material respect, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default,
in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court decree to
which it or its properties or assets may be subject or has failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit ("Permit") necessary to the
ownership of its properties or assets or to the conduct of its
business, or has received notice of any attempt to revoke or modify
any such Permit, or has any reason to believe that any such Permit
will not be granted or renewed.
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(o) RMI and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is, in the
reasonable judgment of RMI, adequate for the conduct of their
respective businesses and the value of their respective properties.
(p) Price Waterhouse L.L.P. are independent public
accountants with respect to RMI as required by the Act and the rules
and regulations thereunder.
(q) The financial statements, together with the notes
thereto, included or incorporated in the RMI Registration Statement
and the RMI Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of
operations and changes in financial position of RMI on the basis
stated in the RMI Registration Statement at the respective dates or
for the respective periods to which they apply; such statements and
the related notes thereto have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout the periods involved except as noted therein.
(r) No material labor dispute with the employees of RMI
exists, except as described in or contemplated by the RMI Prospectus,
or, to the knowledge of RMI, is imminent; and RMI is not aware of any
existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers, manufacturers, or contractors that
could have a RMI Material Adverse Effect.
(s) RMI is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder ("ERISA"); no "reportable event"
(as defined in ERISA) has occurred with respect to any "pension plan"
(as defined in ERISA) for which RMI would have any liability; RMI has
not incurred and does not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue
Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for
which RMI would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(t) RMI has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
has paid all taxes due thereon, and no tax deficiency has been
determined adversely to RMI or any of its subsidiaries which has had
(nor does RMI have any knowledge of any tax deficiency which, if
determined adversely to RMI or any of its subsidiaries, might have) a
RMI Material Adverse Effect.
(u) RMI has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of RMI to facilitate the sale or resale of the DECS or the
Shares.
(v) The outstanding shares of RMI Common Stock are duly
listed and admitted for trading on the New York Stock Exchange (the
"NYSE").
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3. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, USX agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from USX, at a price of $______ per
DECS, plus accrued interest, if any, on the DECS from __________, 1996 to the
Closing Date, the number of DECS set forth opposite such Underwriter's name in
Schedule I hereto. The initial public offering price of the DECS, as described
on the cover of the Final USX Prospectus, will be $______ per DECS or
$________in the aggregate.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, USX hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up
to 483,600 of the Option DECS at the same purchase price per DECS as the
Underwriters shall pay for the Underwritten DECS. Said option may be exercised
only to cover over-allotments in the sale of the Underwritten DECS by the
Underwriters. Said option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the Final
USX Prospectus upon written or telegraphic notice by the Representatives to USX
setting forth the number of the Option DECS as to which the several
Underwriters are exercising the option and the settlement date. Delivery of
certificates for the Option DECS, and payment therefor, shall be made as
provided in Section 4 hereof. The number of Option DECS to be purchased by
each Underwriter shall be the same percentage of the total number of Option
DECS to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten DECS, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional DECS.
4. Delivery and Payment. Delivery of and payment for the
Underwritten DECS and the Option DECS (if the option provided for in Section
3(b) hereof shall have been exercised on or before the first business day prior
to the Closing Date) shall be made at 10:00 AM, New York City time, on
________, 1996, (or such later date not later than five business days after
such specified date as the Representatives shall designate) which date and time
may be postponed by agreement between the Representatives and USX or as
provided in Section 11 hereof (such date and time of delivery and payment for
the DECS being herein called the "Closing Date"). Delivery of the DECS shall
be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to USX by wire transfer to an
account designated in writing by USX at least two business days in advance of
the Closing Date, payable in same-day funds. Delivery of the DECS shall be
made at such location as the Representatives shall reasonably designate at
least one business day in advance of the Closing Date and payment for such DECS
shall be made at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates for the DECS shall be registered in
such names and in such denominations as the Representatives may request not
less than one full business day in advance of the Closing Date.
USX agrees to have the DECS available for inspection, and
checking by the Representatives in New York, New York, not later than 1:00 PM
on the business day prior to the Closing Date.
If the option provided for in Section 3(b) hereof is exercised
after the first business day prior to the Closing Date, USX will deliver (at
the expense of USX) to the Representatives at the office of Xxxxxxx Xxxxxxx &
Xxxxxxxx, New York, New York, on the date specified by the Representatives
(which shall be within three business days after exercise of said option),
certificates for the Option DECS in such names and denominations the
Representatives shall have requested against payment of the purchase price
thereof to or upon the order of USX either by certified or
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official bank check or checks drawn on or by a New York Clearing House bank or
by wire transfer to an account designated in writing by USX at least two
business days in advance of the Closing Date, and in either case payable in
same-day funds. If settlement for the Option DECS occurs after the Closing
Date, USX and RMI will deliver to the Representatives on the settlement date
for the Option DECS, and the obligation of the Underwriters to purchase the
Option DECS shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 7 hereof.
5. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the DECS for sale to the public as set
forth in the Final USX Prospectus.
6. Agreements of USX. USX agrees with each Underwriter that:
(a) USX will use its best efforts to cause any amendment to
the USX Registration Statement, if not effective at the Execution
Time, to become effective. Prior to the termination of the offering
of the DECS, USX will not file any amendment to the USX Registration
Statement or supplement (including the Final USX Prospectus or any
Preliminary Final USX Prospectus) to the Basic USX Prospectus unless
USX has furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which you
reasonably object, unless, in the reasonable judgment of USX and its
counsel, such amendment or supplement is necessary to comply with
applicable law, in which case USX will permit you a reasonable
opportunity to comment thereon. Subject to the foregoing sentence,
USX will cause the Final USX Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. USX will promptly advise the Representatives (A) when
any amendment to the USX Registration Statement, if not effective at
the Execution Time, shall have become effective, (B) when the Final
USX Prospectus, and any supplement thereto, shall have been filed with
the Commission pursuant to Rule 424(b), (C) when, prior to termination
of the offering of the DECS, any amendment to the USX Registration
Statement shall have been filed or become effective, (D) of any
request by the Commission for any amendment of the USX Registration
Statement or supplement to the Final USX Prospectus or for any
additional information, (E) of the issuance by the Commission of any
stop order suspending the effectiveness of the USX Registration
Statement or the institution or threatening of any proceeding for that
purpose and (F) of the receipt by USX of any notification with respect
to the suspension of the qualification of the DECS for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. USX will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when a prospectus relating to the DECS is
required to be delivered under the Act, any event occurs as a result
of which the Final USX Prospectus as then supplemented would include
any 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
shall be necessary to amend the USX Registration Statement or
supplement the Final USX Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, USX promptly will
prepare and file with the Commission, subject to the second sentence
of paragraph (a) of this Section 6, an amendment or supplement which
will correct such statement or omission or effect such compliance.
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(c) As soon as practicable, USX will make generally available
to its security holders and to the Representatives an earnings
statement or statements of USX and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and, at the option of USX,
Rule 158 under the Act.
(d) USX will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the USX
Registration Statement (including exhibits thereto); and to each other
Underwriter a copy of the USX Registration Statement (without exhibits
thereto). USX will furnish to the Underwriters not later than (A)
6:00 PM, New York City time, on the date of determination of the
public offering price, if such determination occurred at or prior to
12:00 Noon, New York City time, on such date or (B) 6:00 PM, New York
City time, on the business day following the date on which the public
offering price was determined, if such determination occurred after
12:00 Noon, New York City time, on such date, as many copies of the
Final USX Prospectus and any supplement thereto as the Representatives
may reasonably request; further, so long as delivery of a prospectus
by an Underwriter or any dealer may be required by the Act, as many
copies of each Preliminary Final USX Prospectus and the Final USX
Prospectus and any supplement thereto as the Representatives may
reasonably request. USX will pay the expenses of printing or other
production of the USX Registration Statement, each Preliminary Final
USX Prospectus and the Final USX Prospectus (other than with respect
to Appendix A thereto which shall be paid by RMI).
(e) USX will arrange for the qualification of the DECS and
the Shares for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the DECS and the
Shares; provided, however, that in connection therewith USX shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(f) USX will not, for a period of 90 days following the
Execution Time, without the prior written consent of the
Representatives, offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, or announce the
offering of, any shares of RMI Common Stock or any securities
convertible into or exercisable or exchangeable for shares of RMI
Common Stock or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of the ownership of shares of RMI Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares of RMI Common Stock or such other
securities, in cash or otherwise.
(g) Until the Closing Date, USX will not, without the prior
written consent of the Representatives, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by USX which
mature more than one year after the Closing Date, other than debt
securities in an aggregate principal amount not to exceed $100
million.
7. Agreements of RMI. RMI agrees with the several
Underwriters that:
(a) RMI will use its best efforts to cause the RMI
Registration Statement, if not effective at the Execution Time, and
any amendment thereof to become effective. Prior to the
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termination of the offering of the DECS, RMI will not file any
amendment of the RMI Registration Statement or supplement to the RMI
Prospectus unless RMI has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement
to which you reasonably object, unless in the reasonable judgment of
RMI and its counsel, such amendment or supplement is necessary to
comply with applicable law, in which case RMI will permit you a
reasonable opportunity to comment thereon. Subject to the foregoing
sentence, if the RMI Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the RMI Prospectus is
otherwise required under Rule 424(b), RMI will cause the RMI
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. RMI will
promptly advise the Representatives (A) when the RMI Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (B) when the RMI Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (C) when, prior to termination of
the offering of the Shares, any amendment to the RMI Registration
Statement shall have been filed or become effective, (D) if any
request by the Commission for any amendment of the RMI Registration
Statement or supplement to the RMI Prospectus or for any additional
information, (E) of the issuance by the Commission of any stop order
suspending the effectiveness of the RMI Registration Statement or the
institution or threatening of any proceeding for that purpose and (F)
of the receipt by RMI of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. RMI will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when a prospectus relating to the DECS is
required to be delivered under the Act, any event occurs as a result
of which the RMI Prospectus as then supplemented would include any
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
shall be necessary to amend the RMI Registration Statement or
supplement the RMI Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, RMI promptly will prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 7, an amendment or supplement which will correct
such statement or omission or effect such compliance.
(c) As soon as practicable, RMI will make generally available
to its security holders and to the Representatives an earnings
statement or statements of RMI and its subsidiaries which will satisfy
the provisions of Section 11(a) of the Act and, at the option of RMI,
Rule 158 under the Act.
(d) RMI will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the RMI
Registration Statement (including exhibits thereto). RMI will furnish
to the Underwriters not later than (A) 6:00 PM, New York City time, on
the date of determination of the public offering price, if such
determination occurred at or prior to 12:00 Noon, New York City time,
on such date or (B) 6:00 PM, New York City time, on the business day
following the date on which the public offering price was determined,
if such determination occurred after 12:00 Noon, New York City time,
on such date, as many copies of each Preliminary RMI Prospectus, the
RMI Prospectus and any supplement thereto as you
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may reasonably request; further, so long as delivery of a prospectus
by the Underwriter or dealer may be required by the Act, as many
copies of each Preliminary RMI Prospectus and the RMI Prospectus and
any supplement thereto as the Representatives may reasonably request.
USX will bear the cost of printing or other production of the RMI
Registration Statement, the Preliminary RMI Prospectus and the RMI
Prospectus.
(e) RMI will cooperate with USX for purposes of the
qualification of the DECS and the Shares for sale under the laws of
such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the DECS and the Shares; provided that in no event
shall RMI be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it
is not now so subject.
(f) RMI will not, for a period of 90 days following the
Execution Time, without the prior written consent of the
Representatives, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, or announce the
offering of, any shares of RMI Common Stock or any securities
convertible into or exercisable or exchangeable for shares of RMI
Common Stock or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of the ownership of shares of RMI Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares of RMI Common Stock or such other
securities, in cash or otherwise; provided, however, that RMI may
issue, or grant options for, RMI Common Stock pursuant to any stock
plan for employees and directors, or any qualified employee benefit
plan, in effect at the Execution Time, or pursuant to any stock
options outstanding at the Execution Time, and any qualified employee
benefit plan in effect at the Execution Time may sell RMI Common Stock
to satisfy plan liquidity needs.
(g) RMI will furnish the Trustee in sufficient quantities for
transmission to holders of the DECS RMI's annual report to
shareholders and reports on Forms 10-K and 10-Q as soon as practicable
after such reports are required to be filed with the Commission.
(h) RMI will take such actions as may be reasonably necessary
to comply with the rules and regulations of the NYSE in respect of the
offering of the Shares contemplated hereby.
8. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the DECS shall be subject to the
accuracy of the representations and warranties on the part of USX and RMI
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 4 hereof, to the accuracy of the statements of USX and
RMI made in any certificates pursuant to the provisions hereof, to the
performance by USX and RMI of their respective obligations hereunder and to the
following additional conditions:
(a) If the RMI Registration Statement has not become
effective prior to the Execution Time, unless the Representatives agree in
writing to a later time, the RMI Registration Statement will become effective
not later than (i) 6:00 PM, New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to 3:00
PM, New York City time, on such date or (ii) 12:00 Noon, New York City time, on
the business day following the day on which
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the public offering price was determined, if such determination occurred after
3:00 PM, New York City time, on such date; if filing of the Final USX
Prospectus or the RMI Prospectus, or any supplements thereto, is required
pursuant to Rule 424(b), such Final USX Prospectus or RMI Prospectus, and any
such supplements, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
USX Registration Statement or the RMI Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) USX shall have furnished to the Representatives the
opinion of X.X. Xxxxxxx, Esq., General Counsel & Senior Vice President -- Human
Resources and Secretary of USX or X.X. Xxxxxxxxxxxxx, Esq., Assistant General
Counsel and Assistant Secretary of USX, dated the Closing Date, to the effect
that:
(i) USX has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with all corporate power and authority to own its
properties and conduct its business as described in the Final USX
Prospectus;
(ii) USX has an authorized capitalization as set forth in
the Final USX Prospectus and all of the issued shares of capital stock
of USX have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) the Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) the DECS have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally
binding obligations of USX, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles, entitled to the benefits
provided by the Indenture; and the DECS and the Indenture conform in
all material respects to the descriptions thereof in the Final USX
Prospectus;
(v) the USX Registration Statement has become effective under
the Act; any required filings of the Basic USX Prospectus, any
Preliminary Final USX Prospectus and the Final USX Prospectus, and any
supplements thereto, pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness
of the USX Registration Statement or the use of such Final USX
Prospectus has been issued, no proceedings for that purpose have been
instituted or threatened, and the USX Registration Statement and the
Final USX Prospectus (including the documents incorporated by
reference therein, other than that part of the USX Registration
Statement that constitutes Form T-1 and the financial statements and
other financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder;
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(vi) this Agreement has been duly authorized, executed and
delivered by USX;
(vii) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending to which USX or any of its
subsidiaries is a party or of which any property of USX or any of its
subsidiaries is the subject, other than as set forth in the Final USX
Prospectus which, if determined adversely to USX or any of its
subsidiaries, would have a material adverse effect on the consolidated
financial position, stockholders' equity or results of operations of
USX and its subsidiaries; and, to the best of such counsel's
knowledge, no such proceedings are threatened by governmental
authorities or by others;
(viii) no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
DECS or the consummation by USX of the transactions contemplated by
this Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the DECS by the Underwriters; and
(ix) the issue and sale of the DECS and the compliance by
USX with all of the provisions of the DECS, the Indenture and this
Agreement with respect to the DECS and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which USX is a party or by which USX is bound or to which any of
the property or assets of USX is subject, nor will such actions result
in any violation of the provisions of the certificate of incorporation
or by-laws of USX or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over USX or any of its properties.
In addition, such counsel shall state that he is _____________
of USX, has participated (or people subject to his supervision have
participated) on behalf of USX in connection with the preparation of the USX
Registration Statement and has participated (or people subject to his
supervision have participated) in conferences with officers and other
representatives of USX, representatives of the independent public accountants
for USX and representatives of the Underwriters and counsel for the
Underwriters, at which conferences the contents of the USX Registration
Statement and the Final USX Prospectus and related matters were discussed; such
counsel may further state that such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
USX Registration Statement or the Final USX Prospectus and that such counsel
makes no representation that he has independently verified the accuracy,
completeness or fairness of such statements; however, in the course of the
preparation and review of the USX Registration Statement and the Final USX
Prospectus and participation in the aforementioned conferences, such counsel
has been given no reason to believe that, as of the USX Effective Date, the USX
Registration Statement or any further amendment thereto made by USX prior to
the Closing Date (other than that part of the USX Registration Statement that
constitutes Form T-1 and the financial statements and other financial
information therein or incorporated by reference therein, as to which such
counsel need express no belief) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that such Final USX
Prospectus (other than the financial statements and other financial information
therein or incorporated by reference therein, as to which such counsel need
express no
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belief), contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; furthermore, such counsel shall state that he has no reason to
believe that any of the documents incorporated by reference in the Final USX
Prospectus (other than the financial statements and other financial information
therein or incorporated by reference therein, as to which such counsel need
express no belief) when they became effective or were so filed, as the case may
be, in the case of a registration statement which became effective under the
Act, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were filed
under the Act or the Exchange Act with the Commission, as of their date,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and such counsel does
not know of any amendment to the USX Registration Statement required to be
filed or any contracts or other documents of a character required to be filed
as an exhibit to the USX Registration Statement or required to be incorporated
by reference into the Prospectus as amended or supplemented or required to be
described in the USX Registration Statement or the Final USX Prospectus as
amended or supplemented which are not filed or incorporated by reference or
described as required.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
laws of the Commonwealth of Pennsylvania and the General Corporation Law of the
State of Delaware or the United States, to the extent such opinion relates to
the law of the State of New York (which law the Indenture, this Agreement and
the DECS state to be the governing law thereof), assume that the laws of the
Commonwealth of Pennsylvania are the same as those of the State of New York
and (B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of USX and public officials. References to the Final USX
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
(c) USX shall have furnished to the Representatives the
opinion of Xxxxxx & Xxxxxxxxx, Chartered, special tax counsel for USX, dated
the Closing Date, to the effect that such counsel has reviewed the statements
in the Final USX Prospectus under the caption "Certain United States Federal
Income Tax Considerations" and, insofar as they are, or refer to, statements of
United States law or legal conclusions, such statements are accurate in all
material respects.
(d) RMI shall have furnished to the Representatives the
opinion of Xxxxx, Day, Xxxxxx & Xxxxx, counsel for RMI, dated the Closing Date,
to the effect that:
(i) RMI has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Ohio,
with corporate power and authority to own or lease its properties and
to conduct its business as described in the RMI Prospectus. RMI is
qualified or registered to do business as a foreign corporation and is
in good standing in the States of Missouri, Pennsylvania and Texas;
(ii) the authorized capital stock of RMI is as set forth in
the first sentence of the second paragraph under the caption
"Description of Capital Stock" in the RMI Prospectus. The description
set forth under such caption constitutes a fair and accurate summary
of such capital stock. All of the shares of Common Stock of RMI
issued and outstanding on the date hereof (including the Shares) have
been duly authorized and validly issued, and are fully paid and
nonassessable;
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(iii) such counsel has been advised by the Commission that
the RMI Registration Statement has become effective under the Act and,
to such counsel's knowledge, no stop order suspending the
effectiveness of the RMI Registration Statement under the Act has been
issued and no proceedings for that purpose are pending or threatened
by the Commission. The RMI Prospectus has been filed with the
Commission in the manner and within the time period required by Rule
424(b);
(iv) this Agreement has been duly authorized, executed and
delivered by RMI;
(v) the performance by RMI of its obligations under this
Agreement will not (a) result in the violation by RMI of any statute,
rule or regulation, in each case known to such counsel, (b) result in
a default under or breach by RMI of any Material Contract (as defined
below), (c) conflict with or result in a default by RMI under RMI's
Amended and Restated Articles of Incorporation or RMI's Code of
Regulations, as amended, or (d) result in the violation by RMI of any
judgment, order or decree known to such counsel to have been issued by
any court or governmental body which is binding upon RMI or its
properties. (Such counsel may state that it expresses no opinion in
this paragraph with respect to (i) any state securities or "Blue Sky"
laws, or (ii) the By-Laws or rules of the NASD);
(vi) no consent, approval, authorization or order of, or
qualification with any governmental agency or body is required for the
execution by RMI of this Agreement or the performance by RMI of the
transactions contemplated hereby, except (i) such as have been
obtained under the Act and (ii) such as may be required under state
securities or "Blue Sky" laws;
(vii) to such counsel's knowledge, there are no persons other
than USX with registration or other similar rights to have any
securities of RMI registered pursuant to the RMI Registration
Statement or otherwise registered by RMI under the Act; and
In addition, such counsel shall state that, in the course of
the preparation by RMI of the RMI Registration Statement and the RMI Prospectus
(documents filed under the Exchange Act and incorporated by reference in the
Registration Statement (other than RMI's Form 10-Q for the quarter ended
September 30, 1996) having been prepared and filed by RMI without its
participation), it participated in discussions with officers and other
employees of RMI and USX, representatives of Price Waterhouse LLP (the
"Accountants"), the independent accountants who examined certain of the
financial statements of RMI and its consolidated entities included in the RMI
Registration Statement and the RMI Prospectus, the Representatives and counsel
for the Underwriters concerning the information contained in the RMI
Registration Statement and the RMI Prospectus and the proposed responses to
various items in Form S-3 under the Act. Based upon its examination of the RMI
Registration Statement and the RMI Prospectus, its investigations made in
connection with the preparation of the RMI Registration Statement and its
participation in the discussions referred to above, such counsel shall state
that it is of the opinion that (i) the RMI Registration Statement (other than
the financial statements and other financial or statistical data included
therein, and except for the information referred to under the caption "Experts"
as having been included in the RMI Registration Statement and the RMI
Prospectus on the authority of the Accountants as experts, as to which it does
not express an opinion), at the time the RMI Registration Statement became
effective under the Act complied, and the RMI Prospectus (with the foregoing
exceptions), as of its date complied and as of the date hereof complies, as to
form in all material respects with the requirements of the Act and the rules
and regulations thereunder; and (ii) the documents filed under the Exchange Act
and incorporated
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by reference in the Registration Statement (with the foregoing exceptions), as
of the time the Registration Statement became effective under the Act, complied
as to form in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder. In addition, based on such
investigations and discussions, such counsel does not know of any pending
litigation or governmental proceeding required to be described in the RMI
Prospectus that is not described as required.
In addition, such counsel shall state that such counsel has
not independently verified and is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness of the information
contained in the RMI Registration Statement, the RMI Prospectus or the Exchange
Act Documents. Such counsel shall further state that, based on the
examinations, investigations and participation in the discussions described
above, however, no facts have to come to such counsel's attention that cause
such counsel to believe that the RMI Registration Statement (including the
Exchange Act Documents but excluding, in each case, the financial statements
and other financial or statistical data included therein, and except for the
information referred to under the caption "Experts" as having been included in
the RMI Registration Statement and the RMI Prospectus on the authority of Price
Waterhouse LLP as experts, as to which such counsel need not express a view),
at the time it became effective contained any untrue statement of material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the RMI
Prospectus (including the Exchange Act Documents but in each case with the
foregoing exceptions) as of its date or on the date of the opinion contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In addition, such counsel shall state that, in rendering the
opinions expressed therein, (i) such counsel has not considered the laws of any
jurisdiction other than the Federal laws of the United States and the laws of
the State of Ohio; (ii) such counsel has assumed that the Underwriters,
including the Representatives, will not take any action (including a decision
not to act) pursuant to Section 7(a) or 7(b) of this Agreement in a manner that
would result in a violation by RMI of applicable Federal securities laws; and
(iii) such counsel has assumed that certain agreements, waivers, consents and
other instruments relevant to such counsel's opinion have been duly authorized,
executed and delivered by, and are the valid and binding obligations of, each
party (other than RMI) thereto. For purposes of such opinions, (i) the term
"Material Contracts" refers to the contracts and agreements filed as exhibits
to documents of RMI filed under the Exchange Act and incorporated by reference
in the RMI Registration Statement; and (ii) references to such counsel's
knowledge or to the state of such counsel's knowledge means the actual
knowledge of those individuals at Xxxxx, Day, Xxxxxx & Xxxxx who have worked on
matters on behalf of RMI during the last two years and does not include the
knowledge of any other person at Xxxxx, Day, Xxxxxx & Xxxxx. In rendering such
opinion, such counsel may rely as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of RMI and public
officials. References to the RMI Prospectus in the preceding paragraph include
any supplements thereto at the Closing Date.
(e) The Representatives shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the DECS, the
Indenture, the USX Registration Statement, the Final USX Prospectus (together
with any supplement thereto), the Shares, the RMI Registration Statement, the
RMI Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and USX and RMI shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(f) USX shall have furnished to the Representatives a
certificate of USX, signed by the Chairman of the Board, the Vice Chairman and
Chief Financial Officer or any Vice President and the principal financial or
accounting officer of USX (who is not one of the foregoing signatories), dated
the Closing Date, to the effect that the signers of such certificate have
carefully examined the USX Registration Statement, the Final USX Prospectus,
any supplement to the Final USX Prospectus and this Agreement and that:
(i) the representations and warranties of USX in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and USX has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the USX
Registration Statement or the use of the Final USX Prospectus has been
issued and no proceedings for that purpose have been instituted or, to
USX's knowledge, threatened; and
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(iii) since the date of the most recent financial statements
included in, or incorporated by reference in, the Final USX Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change, nor any development likely to result in a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations or prospects of USX and its subsidiaries, otherwise than as
set forth in the Final USX Prospectus (exclusive of any supplement
thereto).
(g) RMI shall have furnished to the Representatives a
certificate of RMI, signed by the Chairman of the Board, the President or an
Executive Vice President and the principal financial or accounting officer of
RMI (who is not one of the foregoing signatories), dated the Closing Date, to
the effect that the signers of such certificate have carefully examined the RMI
Registration Statement, the RMI Prospectus, any supplements to the RMI
Prospectus and this Agreement and that:
(i) the representations and warranties of RMI in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and RMI has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the RMI
Registration Statement or the use of the RMI Prospectus has been
issued and no proceedings for that purpose have been instituted or, to
RMI's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in, or incorporated by reference in, the RMI Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change, nor any development likely to result in a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations or prospects of RMI and its subsidiaries, otherwise than as
set forth in the RMI Prospectus (exclusive of any supplement thereto).
(h) At the Execution Time and at the Closing Date, Price
Waterhouse L.L.P., shall have furnished to the Representatives a letter or
letters (which may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and substance
satisfactory to the Representatives, including statements and information of
the type ordinarily included in accountants "comfort letters" to underwriters
with respect to the financial statements, financial statement schedules, and
certain other financial information relating to USX contained in or
incorporated by reference into the USX Registration Statement or Final USX
Prospectus.
(i) At the Execution Time and at the Closing Date, Price
Waterhouse LLP, shall have furnished to the Representatives a letter or letters
(which may refer to letters previously delivered to one or more of the
Representatives), dated as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, including statements
and information of the type ordinarily included in accountants "comfort
letters" to underwriters with respect to the financial statements, financial
statement schedules, and certain other financial information relating to RMI
contained in or incorporated by reference into the RMI Registration Statement
or RMI Prospectus.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in each of the USX Registration
Statement and the RMI Registration Statement (exclusive of any amendment
thereof) and each of the Final USX Prospectus and the RMI Prospectus (exclusive
of any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or
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letters referred to in paragraphs (h) and (i) of this Section 8 or (ii) any
change, or any development involving a prospective change, in or affecting the
business or properties of either USX or RMI and their respective subsidiaries,
taken as a whole, the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or
delivery of the DECS as contemplated by the USX Registration Statement and the
RMI Registration Statement (in either case, exclusive of any amendment thereof)
and the Final USX Prospectus and the RMI Prospectus (in either case, exclusive
of any supplement thereto).
(k) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of USX's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(l) At the Execution Time, RMI shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each director and executive officer of RMI addressed to the Representatives, in
which each such person agrees not to (i) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, or announce the offering of, any shares of
RMI Common Stock or any securities convertible into or exercisable or
exchangeable for shares of RMI Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of the ownership of shares of RMI Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of shares of RMI Common Stock or such other securities, in cash or
otherwise, for a period of 90 days from the Execution Time without the prior
written consent of the Representatives; provided, however, that any such
director or executive officer, together with each of the other directors and
executive officers of RMI, may sell up to 100,000 shares of RMI Common Stock in
the aggregate.
(m) Prior to the Closing Date, each of USX and RMI shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 8 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to USX and RMI in
writing or by telephone or telegraph confirmed in writing.
9. Reimbursement of Underwriters' Expenses. If the sale of
the DECS provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 8 hereof is not satisfied,
because of any termination pursuant to Section 12(i) hereof or because of any
refusal, inability or failure on the part of USX or RMI to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any Underwriter, USX will reimburse the Underwriters severally upon
demand for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
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connection with the proposed purchase and sale of the DECS. If USX is required
to make any payment to the Underwriters under this Section 9 because of RMI's
refusal, inability or failure to satisfy any condition to the obligations of
the Underwriters set forth in Xxxxxxx 0, XXX shall reimburse USX on demand for
all amounts so paid.
10. Indemnification and Contribution. (a) USX agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter, and each person who controls any
Underwriter 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 USX Registration Statement as
originally filed or in any amendment thereof, or in the Basic USX Prospectus,
any Preliminary Final USX Prospectus or the Final USX 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 investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that USX will not be liable under the indemnity agreement in this paragraph (a)
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 in the USX Registration Statement as originally filed
or in any amendment thereof, or in any Preliminary Final USX Prospectus or the
Final USX Prospectus, or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished to USX by or
on behalf of any Underwriter through the Representatives specifically for
inclusion therein; provided, further, that USX will not be liable under the
indemnity agreement in this paragraph (a) 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 in
the USX Registration Statement as originally filed or in any amendment thereof,
or in the Basic USX Prospectus, any Preliminary Final USX Prospectus or the
Final USX Prospectus, or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished to USX by
RMI specifically for inclusion therein, including the information contained in
any Preliminary RMI Prospectus or RMI Prospectus included in any such document
(other than information contained in or omitted from any such Preliminary RMI
Prospectus or RMI Prospectus in reliance on and in conformity with information
furnished to RMI by USX specifically for inclusion therein). This indemnity
agreement will be in addition to any liability which USX may otherwise have.
(b) RMI and USX jointly and severally agree to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents
of each Underwriter, and each person who controls any Underwriter 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 (i) the RMI Registration Statement as originally
filed or in any amendment thereof, or in any Preliminary RMI Prospectus or the
RMI Prospectus, or in any amendment thereof or supplement thereto, or (ii) the
USX Registration Statement as originally filed or in any amendment thereof, or
in any Preliminary Final USX Prospectus or the Final USX Prospectus, or in any
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amendment thereto or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state in the documents referred to in clause
(i) or (ii) above a material fact required to be stated in the documents
referred to in clause (i) or (ii) above or necessary to make the statements
therein not misleading, but in the case of the documents referred to clause
(ii) only to the extent that the untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished in writing to USX by RMI specifically for
inclusion therein (other than information contained in or omitted from any such
Preliminary RMI Prospectus or RMI Prospectus in reliance on and in conformity
with information furnished to RMI by USX specifically for inclusion therein,
and agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that neither RMI nor USX will be liable under the indemnity agreement
in this paragraph (b) 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 in the documents referred
to in clause (i) above in reliance upon and in conformity with written
information furnished to RMI by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein; provided, further , that as
to any Preliminary RMI Prospectus, neither RMI nor USX will be liable under
this indemnity agreement in this paragraph (b) to that extent that any such
loss, claim, damage or liability arises out of the failure to send or give a
copy of the RMI Prospectus, as the same may be amended or supplemented, to a
person within the time required by the Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary RMI Prospectus was corrected in the RMI
Prospectus, unless such failure resulted from non-compliance by RMI with
Section 7(d); provided, further that RMI shall not be liable under the
indemnity agreement in this paragraph (b) to the extent that any such loss,
claim, damage or liability arises out of or is based on any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the documents referred to in clause (i) above in reliance upon and in
conformity with written information furnished to RMI by USX specifically, for
inclusion therein. This indemnity agreement will be in addition to any
liability which RMI or USX may otherwise have.
(c) USX agrees to indemnify and hold harmless RMI, the
directors, officers, employees and agents of RMI, and each person who controls
RMI 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 USX Registration Statement as originally
filed or in any amendment thereof, or in the Basic USX Prospectus, any
Preliminary Final USX Prospectus or the Final USX 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 investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that USX will not be liable under the indemnity agreement in this paragraph (c)
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 in the USX Registration Statement as originally filed
or in any amendment thereof, or in any Preliminary Final USX Prospectus or the
Final USX Prospectus, or in any amendment thereof or supplement thereto in
reliance upon and in conformity with written information furnished by or on
behalf of RMI specifically for inclusion therein.
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(d) RMI agrees to indemnify and hold harmless USX, the
directors, officers, employees and agents of USX and each person who controls
USX, 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 any Preliminary Final USX Prospectus or the
Final USX 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, but only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished in
writing to USX by RMI specifically for inclusion therein, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action.
(e) Each Underwriter severally agrees to indemnify and hold
harmless USX, each of its directors, each of its officers who signs the USX
Registration Statement, and each person who controls USX within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity in paragraph (a) from USX to each Underwriter, but only with
reference to written information furnished to USX by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in such indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have. USX
acknowledges that the statements set forth in the sixth and last paragraphs of
the cover page, in the paragraph on the inside cover page, and under the
heading "Plan of Distribution" in any Preliminary Final USX Prospectus or the
Final USX Prospectus constitute the only information furnished in writing by or
on behalf of any Underwriter for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm that such
statements are correct.
(f) Each Underwriter severally agrees to indemnify and hold
harmless RMI and USX, each of their respective directors, each of their
respective officers who signs the RMI Registration Statement or the USX
Registration Statement, respectively, and each person who controls RMI or USX
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity in paragraph (b) from RMI and USX to each Underwriter,
but only with reference to written information relating to such Underwriter
furnished to RMI by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the documents referred to in such indemnity.
This indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. RMI and USX acknowledge that the statements
set forth in the fourth paragraph of the cover page, in the paragraph on the
inside cover page, and under the heading "Plan of Distribution" in any
Preliminary RMI Prospectus or the RMI Prospectus constitute the only
information furnished in writing by or on behalf of any Underwriter for
inclusion in the documents referred to in the foregoing indemnity, and you, as
the Representatives, confirm that such statements are correct.
(g) Promptly after receipt by an indemnified party under this
Section 10 of 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 10, 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 any liability under paragraphs (a), (b), (c), (d), (e)
or (f) 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
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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 paragraphs (a), (b), (c), (d), (e) or
(f) above. The indemnifying party shall be entitled to appoint counsel of
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 reasonably 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
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate 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 upon the advice of its counsel that there are
legal defenses available to it and/or other indemnified parties which are
different from 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; provided, however, in no event shall the
indemnifying party be liable for legal fees or expenses of more than one
primary firm representing the indemnified parties or more than one local
counsel in each state or other jurisdiction in which an action in which
indemnification is available has been brought. An indemnifying party will not,
without the prior written consent of the indemnified parties, 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.
(h) In the event that the indemnity provided in paragraphs
(a), (b), (c), (d), (e) or (f) of this Section 10 is unavailable to or
insufficient to hold harmless an indemnified party for any reason, each
indemnifying party agrees 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 an indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by USX and RMI on the one hand and by
the Underwriters on the other from the offering of the DECS; provided, however,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the DECS) be
responsible for any amount in excess of the underwriting discount applicable to
the DECS purchased by such Underwriter hereunder. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, each
indemnifying party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of USX and
RMI on the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations; provided, however, that if the
indemnification relates to USX and RMI as the respective indemnifying and
indemnified parties (or vice versa), such indemnifying parties shall contribute
in such proportion as shall be appropriate to reflect the relative faults of
USX or RMI as applicable, with respect to the statements or omissions which
resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by USX or RMI on the one
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hand and the Underwriters on the other with respect to such offering shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by USX, and the total underwriting discounts and
commissions, respectively, in each case as set forth on the cover page of the
Final USX Prospectus and, as between RMI and the Underwriters, RMI shall be
deemed for this purpose to have received such total net proceeds as received by
USX. Relative fault shall be determined by reference to whether any alleged
untrue statement or omission relates to information provided by USX, RMI or the
Underwriters. USX, RMI and the Underwriters 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 (h), 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 10, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of such Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls USX or RMI
within the meaning of either the Act or the Exchange Act, each officer of USX
or RMI who shall have signed the USX Registration Statement or the RMI
Registration Statement and each director of USX or RMI shall have the same
rights to contribution as USX or RMI, subject in each case to the applicable
terms and conditions of this paragraph (h).
11. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the DECS agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of DECS set forth opposite their names in Schedule I hereto
bears to the aggregate principal amount of DECS set forth opposite the names of
all the remaining Underwriters) the DECS which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of DECS which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of DECS set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the DECS, and if such nondefaulting Underwriters
do not purchase all the DECS, this Agreement will terminate without liability
to any nondefaulting Underwriter, USX or RMI. In the event of a default by any
Underwriter as set forth in this Section 11, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the USX or RMI
Registration Statement and the Final USX or RMI Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to USX, RMI
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
12. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to USX and RMI prior to delivery of and payment for the DECS, if prior to such
time (i) trading in USX's or RMI's common stock shall have been suspended by
the Commission or the NYSE, (ii) trading in securities generally on the NYSE
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (iii) a banking moratorium shall have been
declared by either Federal or New York State authorities, (iv) there shall have
been any decrease in the rating of any of USX's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in
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any such rating that does not indicate the direction of the possible change or
(v) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis, the effect of which on financial markets of the United
States is such as to make, it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
DECS as contemplated by the Final USX Prospectus (exclusive of any supplement
thereto).
13. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of USX and RMI or their respective officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the
Underwriters, USX or RMI or any of the officers, directors or controlling
persons referred to in Section 10 hereof, and will survive delivery of and
payment for the DECS. The provisions of Sections 9 and 10 hereof shall survive
the termination or cancellation of this Agreement.
14. Notices. All communications hereunder will be in writing
and effective only on receipt and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to it at Seven Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if sent to USX, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
15219- 4776, Attention Xxxx X. Xxxxxxxx; or if sent to RMI, will be mailed,
delivered or telegraphed and confirmed to it at 0000 Xxxxxx Xxxxxx, Xxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxx.
15. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 10
hereof, and no other person will have any right or obligation hereunder.
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16. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among USX, RMI and the several Underwriters.
Very truly yours,
USX Corporation
By:__________________________
Name:
Title:
RMI Titanium Company
By:__________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Xxxxxx Brothers Inc.
By: Salomon Brothers Inc
By:__________________________
Name:
Title:
For itself and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
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SCHEDULE I
Number of Underwritten
Underwriter DECS to be Purchased
----------- ----------------------
Salomon Brothers Inc..............................
Xxxxxx Brothers Inc...............................
---------
Total ........................... 5,000,000
=========
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EXHIBIT A
[Letterhead of executive officer or director
of RMI Titanium Company]
RMI Titanium Company
Public Offering of DECS
__________, 1996
Salomon Brothers Inc
Xxxxxx Brothers Inc.
As Representatives of the several Underwriters
c/o Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement"), among RMI
Titanium Company, an Ohio corporation (the "Company"), USX Corporation, a
Delaware corporation ("USX"), and the several underwriters named therein (the
"Underwriters") for whom you are acting as representatives, relating to an
underwritten public offering of DECS (Debt Exchangeable for Common Stock) of
USX, exchangeable for common stock, $.01 par value, of the Company (the "RMI
Common Stock") .
In order to induce you and the other Underwriters to enter
into the Underwriting Agreement, the undersigned agrees not to (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, or
announce the offering of, any shares of RMI Common Stock or any securities
convertible into or exercisable or exchangeable for shares of RMI Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of the ownership of shares
of RMI Common Stock, whether any such transaction described in clause (i) or
(ii) above is to be settled by delivery of shares of RMI Common Stock or such
other securities, in cash or otherwise, for a period of 90 days from the date
of this Agreement without the prior written consent of the Representatives;
provided, however, that the undersigned, together with each of the other
directors and executive officers of the Company on the date hereof, may sell up
to 100,000 shares of RMI Common Stock in the aggregate.
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If for any reason the Underwriting Agreement shall be
terminated prior to the Closing Date (as defined in the Underwriting
Agreement), the agreement set forth above shall likewise be terminated.
Yours very truly,
________________________________
[Signature of executive officer]
[Name and address of executive officer]
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