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EXHIBIT 99.1
EXECUTION COPY
TIMET CAPITAL TRUST I
3,500,000 6-5/8% Convertible Preferred Securities (1)
Beneficial Unsecured Convertible Securities (BUCS)
(Liquidation Amount $50.00 per Convertible Preferred Security)
Guaranteed to a Limited Extent by, and
Convertible into the Common Stock of,
TITANIUM METALS CORPORATION
PURCHASE AGREEMENT
New York, New York
November 20, 1996
Salomon Brothers Inc
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
Incorporated
As Representatives of the Initial Purchasers
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
TIMET Capital Trust I, a Delaware statutory business trust (the
"Trust"), and Titanium Metals Corporation, a Delaware corporation (the
"Company"), as sponsor of the Trust and as guarantor, propose to issue and
sell to the parties named in Schedule I hereto (the "Initial Purchasers"),
for whom you are acting as representatives (the "Representatives"),
3,500,000 (the "Firm Securities") of its 6-5/8% Convertible Preferred
Securities, Beneficial Unsecured Convertible Securities (BUCS), liquidation
amount $50.00 per Convertible Preferred Security ("Convertible Preferred
Securities"). The Company and the Trust also propose to grant to the
Initial Purchasers an option to purchase up to 525,000 additional
Convertible Preferred Securities to cover over-allotments, if any (the
"Option
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(1) Plus an option to purchase up to 525,000 additional Convertible
Preferred Securities from the Trust to cover over-allotments.
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Securities" and, together with the Firm Securities, the "Securities"). The
Securities will represent undivided beneficial ownership interests in the
assets of the Trust, will be guaranteed by the Company as to the payment of
distributions, and as to payments on liquidation or redemption, to the
extent set forth in a guarantee agreement (the "Guarantee") between the
Company and The Chase Manhattan Bank, as trustee (the "Guarantee Trustee"),
and will be effectively convertible into shares of the common stock, $.01
par value ("Common Stock"), of the Company initially at the conversion price
set forth herein. The Securities are to be issued under the Amended and
Restated Declaration of Trust of TIMET Capital Trust I (the "Declaration")
dated as of November 20, 1996 among Xxxxxx X. Xxxxxxxxxxx, Xxxxxx X.
Xxxxxxxxx and Xxxx X. Xxxxxxx (each a "Regular Trustee" and, collectively,
the "Regular Trustees"), The Chase Manhattan Bank, as Property Trustee (the
"Property Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee (the
"Delaware Trustee") and the Company, as Sponsor. The proceeds of the sale
by the Trust of the Securities and its 6-5/8% Common Securities, liquidation
amount $50 per Common Security ("Common Securities"), are to be invested in
the 6-5/8% Convertible Junior Subordinated Debentures due 2026 (the
"Convertible Debentures") of the Company, to be issued under an Indenture
(the "Indenture") between the Company and The Chase Manhattan Bank, as
Trustee (the "Indenture Trustee"). Holders (including subsequent
transferees) of the Securities will have the registration rights set forth
in the Registration Agreement (the "Registration Agreement") to be entered
into among the Company, the Trust and the Initial Purchasers. Pursuant to
the Registration Agreement, the Company and the Trust have agreed to file
with the Securities and Exchange Commission (the "Commission") a shelf
registration statement under the Securities Act of 1933 (the "Securities
Act") to register resales of the Securities, the Guarantee, the Convertible
Debentures and the Common Stock issuable upon conversion thereof. If you
are the only Initial Purchasers, all references herein to the
Representatives shall be deemed to be to the Initial Purchasers.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act, in
reliance upon exemptions from the registration requirements of the
Securities Act. You have advised the Company that the Initial Purchasers
will offer and sell the Securities purchased by them hereunder in
accordance with Section 4
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hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Company and
the Trust have prepared a preliminary offering memorandum, dated November
11, 1996 (including Exhibit A thereto, the "Preliminary Memorandum"), and a
final offering memorandum, dated November 20, 1996 (including any and all
exhibits thereto, the "Final Memorandum"). Each of the Preliminary
Memorandum and the Final Memorandum sets forth certain information
concerning the Company, the Trust and the Securities. The Company hereby
confirms that it has authorized the use of the Preliminary Memorandum and
the Final Memorandum, and any amendment or supplement thereto, in connection
with the offer and sale of the Securities by the Initial Purchasers. Unless
stated to the contrary, all references herein to the Final Memorandum are to
the Final Memorandum at the Execution Time (as defined below) and are not
meant to include any amendment or supplement subsequent to the Execution
Time.
1. Representations and Warranties. Each of the Company and
the Trust represents and warrants to each Initial Purchaser as set forth
below in this Section 1; provided, however, that the representations and
warranties contained in clauses (b), (c) and (e) below shall not be deemed
to constitute representations and warranties regarding the activities of
the Initial Purchasers.
(a) The Final Memorandum, at the date hereof, does not,
and at the Closing Date (as defined below) will not (and any amendment
or supplement thereto, at the date thereof and at the Closing Date,
will not), contain 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; provided, however, that no representation or warranty is
made by the Company or the Trust as to the information contained in or
omitted from the Preliminary Memorandum or the Final Memorandum, or
any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company or the
Trust by or on behalf of the Initial Purchasers through the
Representatives specifically for inclusion therein (which the parties
hereto understand consists only of
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the names of the Initial Purchasers, the second full paragraph on page
5 of the Final Memorandum and the table below paragraph 1 and
paragraphs 6 and 7 in the section of the Final Memorandum entitled
"Plan of Distribution" (all such information shall be collectively
referred to herein as the "Initial Purchaser Information")).
(b) Neither the Company, nor any of its Affiliates (as
defined in Rule 501(b) of Regulation D under the Securities Act
("Regulation D")), nor any person acting on its or their behalf has,
directly or indirectly, made offers or sales of any security, or
solicited offers to buy any security, under circumstances that would
require the registration of the Securities under the Securities Act.
(c) Neither the Company, nor any of its Affiliates, nor
any person acting on its or their behalf has engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities
in the United States.
(d) The Securities satisfy the eligibility requirements
of Rule 144A(d)(3) under the Securities Act.
(e) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf has engaged in any directed
selling efforts with respect to the Securities, and each of them has
complied with the offering restrictions requirement of Regulation S
("Regulation S") under the Securities Act. Terms used in this
paragraph have the meanings given to them by Regulation S.
(f) The Company has been advised by the National Association
of Securities Dealers, Inc. Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market that the Securities have
been designated PORTAL-eligible securities in accordance with the
rules and regulations of the National Association of Securities
Dealers, Inc.
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(g) Neither the Company nor the Trust is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act of 1940 (together with the rules and
regulations thereunder, the "Investment Company Act"), nor is it a
closed-end investment company required to be registered, but not
registered, thereunder; neither the Company nor the Trust is and,
after giving effect to the offer and sale of the Securities and the
application of the proceeds thereof as described in the Final
Memorandum, will be an "investment company" as defined in the
Investment Company Act.
(h) The Company is subject to and in compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange
Act in all material respects.
(i) Neither the Company nor the Trust has paid or agreed to
pay to any person any compensation for soliciting another to purchase
any of the Securities (except as contemplated by this Agreement).
(j) The information provided by the Company pursuant to
Section 5(h) hereof will not, at the date thereof, contain 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.
(k) The Company has requested that the Initial Purchasers
reserve up to 7,000 Firm Securities to be sold at the initial offering
price to executive officers and directors of the Company and certain
other individuals having relationships with the Company or such
officers and directors.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Company and the Trust agree that the Trust will sell to each Initial
Purchaser, and each Initial Purchaser agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $50.00 per
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Security, plus accrued distributions, if any, from November 26, 1996 to the
Closing Date, the number of Firm Securities set forth opposite such Initial
Purchaser's name in Schedule I hereto. Each Security will be convertible at
the option of the holder into shares of Common Stock of the Company at a
conversion rate of 1.339 shares of Common Stock per Security, subject to
adjustment as described in the Final Memorandum.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Trust hereby grants an
option (the "Option") to the Initial Purchasers to purchase, severally and not
jointly, the Option Securities at a purchase price of $50.00 per Security, plus
accrued distributions, if any, from November 26, 1996 to the settlement date
for the Option Securities. The Option may be exercised only to cover over-
allotments in the sale of the Firm Securities by the Initial Purchasers. The
Option may be exercised in whole or in part at any time (but not more than
once) on or before 5:00 p.m. New York City time, on the 30th day after the date
of the Final Memorandum upon written, telecopied or telegraphic notice by the
Representatives to the Company and the Trust setting forth the number of Option
Securities as to which the Initial Purchasers are exercising the Option and the
settlement date therefor. Delivery of certificates for the Option Securities,
and payment therefor, shall be made as provided in Section 3 hereof. The
number of Option Securities to be purchased by each Initial Purchaser shall be
the same percentage of the total number of Option Securities to be purchased by
the Initial Purchasers as such Initial Purchaser is purchasing of the Firm
Securities, subject to such adjustments as the Representatives shall deem
advisable.
As compensation for the commitments of the Initial Purchasers
contained in this Section 2, the Company hereby agrees to pay to the Salomon
Brothers Inc for the respective accounts of the Initial Purchasers an amount
equal to $1.625 per Security times the total number of Firm Securities or
Option Securities purchased by the Initial Purchasers on the Closing Date or
the settlement date for the Option Securities, respectively, as commissions for
the sale of such Firm Securities or Option Securities under this Agreement.
Such payment will be made on the Closing Date
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with respect to the Firm Securities and on the settlement date for the Option
Securities with respect to the Option Securities.
3. Delivery and Payment. Delivery of and payment for the
Firm Securities and the Option Securities (if the Option provided for in
Section 2(b) hereof shall have been exercised on or before the third business
day prior to the Closing Date) shall be made at 10:00 AM, New York City time,
on November 26, 1996, or such later date (not later than December 3, 1996) as
the Representatives and the Company shall agree upon in writing, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the Initial Purchasers against payment by the Initial Purchasers through the
Representatives of the purchase price thereof to or upon the order of the Trust
by wire transfer drawn and payable in same day funds or such other manner of
payment as may be agreed by the Company, the Trust and the Representatives.
Delivery of the Securities 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 the Securities shall be made at the office
of Cravath, Swaine & Xxxxx ("Counsel to the Initial Purchasers"), Worldwide
Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Certificates for the Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance
of the Closing Date.
The Company agrees to have the Securities available for
inspection, checking and packaging 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 is exercised after the third business day prior
to the Closing Date, the Company will deliver (at the expense of the Company)
to the Representatives, at Seven World Trade Center, New York, New York, on the
date specified by the Representatives (which shall be within three business
days after exercise of the Option), certificates for the Option Securities in
such
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names and denominations as the Representatives shall have requested against
payment of the purchase price thereof to or upon order of the Trust by wire
transfer drawn and payable in same day funds or such other manner of payment as
may be agreed by the Company, the Trust and the Representatives. If settlement
for the Option Securities occurs after the Closing Date, the Company will
deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Initial Purchasers to purchase the Option
Securities 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 6 hereof.
4. Offering of Securities. Each Initial Purchaser, severally
and not jointly, represents and warrants to and agrees, with the Company that:
(a) It has not offered or sold, and will not offer or
sell, any Securities except (i) to those it reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the
Securities Act) and to whom notice has been given that such sale is
being made in reliance on Rule 144A, or (ii) to other institutional
"accredited investors" (as defined in Rule 501(a)(1),(2), (3) or (7)
of Regulation D) who provide to it and to the Company a letter in the
form of Exhibit A hereto, or (iii) to certain executive officers and
directors of the Company who are "accredited investors" (as defined in
Rule 501(a)(4) of Regulation D), and certain individuals having
relationships with the Company (or an executive officer or director
thereof) who are "accredited investors" (as defined in Rule 501(a)(5)
or (6) or who have such knowledge and experience in financial and
business matters that such individuals are capable of evaluating the
merits and risks of any investment in the Securities, who provide to
it and to the Company a letter in the form of Exhibit B hereto, or
(iv) in accordance with the restrictions set forth in Exhibit C
hereto.
(b) Neither it nor any person acting on its behalf has
made or will make offers or sales of the
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Securities in the United States by means of any form of general
solicitation or general advertising (within the meaning of Regulation
D) in the United States.
5. Agreements. Each of the Company and the Trust agrees with
each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser,
without charge, during the period referred to in paragraph (c) below,
as many copies of the Final Memorandum and any amendments and
supplements thereto as it may reasonably request. The Company will
pay the expenses of printing or other production of all documents
relating to the offering.
(b) The Company will not amend or supplement the Final
Memorandum without the prior written consent of the Representatives,
which consent shall not be unreasonably withheld.
(c) If at any time prior to the completion of the sale of
the Securities by the Initial Purchasers (as determined by the
Representatives), any event occurs as a result of which the Final
Memorandum, as then amended or 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
should be necessary to amend or supplement the Final Memorandum to
comply with applicable law, the Company will promptly notify the
Representatives of the same and, subject to the requirements of
paragraph (b) of this Section 5, will prepare and provide to the
Representatives pursuant to paragraph (a) of this Section 5 an
amendment or supplement which will correct such statement or omission
or effect such compliance.
(d) The Company and the Trust will arrange for the
qualification of the Securities for sale by the Initial Purchasers
under the laws of such jurisdictions as the Initial Purchasers may
reasonably designate and will maintain such qualifications in effect
so long as required for the sale of the Securities. The Company will
promptly advise the Representatives of the receipt
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by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
(e) The Company will not, and will not permit any of its
affiliates (as defined in Rule 501(b) of Regulation D) (other than
directors or officers of the Company who make resales in compliance
with all applicable resale restrictions) to, resell any Securities
that have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor
any person acting on its or their behalf will, directly or indirectly,
make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of
the Securities under the Securities Act.
(g) Neither the Company, nor any of its Affiliates, nor
any person acting on its or their behalf will engage in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities
in the United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, the Company will, during any period in which it is not subject to
and in compliance with Section 13 or 15(d) of the Exchange Act,
provide to each holder of such restricted securities and to each
prospective purchaser (as designated by such holder) of such
restricted securities, upon the request of such holder or prospective
purchaser, any information required to be provided by Rule 144A(d)(4)
under the Securities Act.
(i) Neither the Company, nor any of its Affiliates, nor any
person acting on its or their behalf will engage in any directed
selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirement of Regulation S.
Terms used in this paragraph have the
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meanings given to them by Regulation S.
(j) Each of the Company and the Trust will cooperate with the
Representatives and use its respective best efforts to permit the
Securities to be eligible for clearance and settlement through The
Depository Trust Company.
(k) The Company will not, without the prior written
consent of Salomon Brothers Inc, directly or indirectly, offer, sell,
contract to sell grant any other option to purchase or otherwise
dispose of, or announce the offering of, any shares of preferred
stock, $.01 par value ("Preferred Stock"), or Common Stock of the
Company, or any securities convertible into, or exchangeable for
shares of Preferred Stock or Common Stock, or enter into any agreement
to do any of the foregoing, until 90 days following the date hereof
(other than the Securities); provided, however, that the Company may
issue Common Stock pursuant to any employee or director stock option
or compensation plan in effect at the Execution Time.
(l) In connection with any disposition of Securities pursuant
to a transaction made in compliance with paragraph 1 of Exhibit A, the
Company will reissue certificates evidencing such Securities without a
restrictive legend (provided, if requested, that the legal opinion
referred to therein so permits).
(m) During the period of three years after the last date of
original issuance of the Securities, neither the Company nor the Trust
will be or become an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act and will not
be or become a closed-end investment company required to be
registered, but not registered, under the Investment Company Act.
6. Conditions to the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase the Firm Securities and
the Option Securities, as the case may be, shall be subject to the accuracy of
the representations and warranties on the part of the Company
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and the Trust contained herein at the date and time that this Agreement is
executed and delivered by the parties hereto (the "Execution Time"), and the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and the Trust made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and the Trust of its obligations hereunder in all material respects and
to the following additional conditions:
(a) The Company and the Trust shall have furnished to the
Representatives the opinion of Xxxxxx X. Xxxxxxxxx, Esq., counsel to
the Company and the Trust, dated the Closing Date (with respect to
paragraphs (i) through (vi) below and the due authorization, execution
and delivery aspects of paragraphs (vii) through (ix) below), and the
opinion of Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx, special counsel to
the Company and the Trust, dated the Closing Date (with respect to
paragraphs (vii) through (xv) below), to the effect that:
(i) each of the Company and the subsidiaries of the
Company listed on Schedule II hereto (individually, a
"Subsidiary" and collectively, the "Subsidiaries") has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it
is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Memorandum, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock of
the Company and each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Final Memorandum,
all outstanding shares of capital stock of the Subsidiaries
are owned by the Company either
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directly or through wholly owned subsidiaries free and clear
of any perfected security interest (other than in favor of the
Company's lenders) and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens
or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Final Memorandum and the Securities
conform to the description thereof contained in the Final
Memorandum; the shares of Common Stock initially issuable upon
conversion of the Securities have been duly authorized for
listing, subject to official notice of issuance, on the Nasdaq
National Market; the holders of the outstanding shares of
capital stock of the Company are not entitled to any
preemptive or other rights to subscribe for the Securities,
the Convertible Debentures or the shares of Common Stock
issuable upon conversion thereof, or the Common Securities,
except as described in the first paragraph of the Final
Memorandum under the section entitled "Shareholders'
Agreements"; and the shares of Common Stock initially issuable
upon conversion of the Securities have been duly and validly
authorized and reserved for issuance upon such conversion and,
when issued upon conversion, will be validly issued, fully
paid and nonassessable;
(iv) to the knowledge of such counsel, after due
inquiry, (A) the Trust has conducted and will conduct no
business other than the transactions contemplated by this
Agreement and as described in the Final Memorandum; (B) the
Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Declaration and the
agreements and instruments contemplated by the Declaration and
the Final Memorandum; and (C) the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement and the Declaration and
described in the Final Memorandum;
(v) to the knowledge of such counsel, after
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due inquiry, (A) there is no pending or overtly threatened
action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the
Company, the Trust or any of the Subsidiaries of a character
required to be disclosed in the Final Memorandum which is not
so disclosed; and (B) there is no franchise, contract or other
document of a character required to be described in the Final
Memorandum, which is not so described;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and xxxx executed and
delivered by the Trust;
(vii) the Registration Agreement has been duly
authorized, executed and delivered by the Company and duly
executed and delivered by the Trust, and constitutes a legal,
valid and binding instrument enforceable against the Company
and the Trust in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect);
(viii) the Indenture has been duly authorized,
executed and delivered, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect); the Convertible
Debentures have been duly and validly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Trust,
will constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture;
(ix) the Guarantee has been duly authorized,
executed and delivered, and constitutes a legal, valid and
binding instrument enforceable against
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the Company in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect);
(x) all of the issued and outstanding Common
Securities will be owned directly by the Company free and
clear of any security interest, claims, liens or encumbrances;
(xi) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by the Company or the Trust of the transactions
contemplated by this Agreement, the Registration Agreement,
the Declaration, the Indenture and the Guarantee, except such
as may be required under the blue sky or securities laws of
any jurisdiction in connection with the purchase and sale of
the Securities by the Initial Purchasers and such other
approvals (specified in such opinion) as have been obtained,
and except in connection with the registration of the
Securities, the Guarantee, the Convertible Debentures and the
Common Stock issuable upon conversion thereof pursuant to the
Registration Agreement;
(xii) neither the issue and sale of the Securities
or the Convertible Debentures, the execution and delivery of
the Declaration, the Indenture, the Guarantee or the
Registration Agreement, the consummation of any other of the
transactions herein or therein contemplated nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or constitute a default
under or violate (A) any of the terms, conditions or
provisions of the charter or by-laws of the Company or the
Declaration, (B) to the knowledge of such counsel, after due
inquiry, any of the terms, conditions or provisions of any
material document, agreement or other instrument to which the
Company or any of
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its subsidiaries or the Trust is a party or by which the
Company or any of its subsidiaries or the Trust is bound, (C)
any law or regulation or, to the knowledge of such counsel
after due inquiry, any judgment, order, decree or ruling
applicable to the Company or any of its subsidiaries or the
Trust of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries or the Trust;
(xiii) assuming the accuracy of the representations
and warranties and compliance with the agreements contained
herein, no registration of the Securities or the Convertible
Debentures under the Securities Act is required, and no
qualification of the Declaration, the Indenture or the
Guarantee under the Trust Indenture Act of 1939 is necessary,
for the offer and sale by the Initial Purchasers of the
Securities in the manner contemplated by this Agreement;
(xiv) neither the Trust nor the Company is an
open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act, nor
is it a closed-end investment company required to be
registered, but not registered, thereunder; and each of the
Trust and the Guarantor is not and, after giving effect to the
offer and sale of the Securities and the application of the
proceeds thereof as described in the Final Memorandum, will
not be an "investment company" as defined in the Investment
Company Act; and
(xv) the Securities, the Common Securities, the
Convertible Debentures and each of the Guarantee, the
Registration Agreement, the Indenture and the Declaration
conform in all material respects to the descriptions thereof
contained in the Final Memorandum.
Each such counsel shall also state that, in the
course of preparation by the Company of the Final
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Memorandum, such counsel has participated in conferences with officers
and other representatives of the Company and the Trust,
representatives of the independent public accountants for the Company
and the Trust, representatives of the Initial Purchasers and
representatives of counsel for the Initial Purchasers, at which
conferences such counsel made inquiries of such officers,
representatives and accountants and discussed the contents of the
Final Memorandum and related matters and, although 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
statements contained in the Final Memorandum (other than as expressly
set forth in such counsel's opinion), no facts have come to the
attention of such counsel which would lead such counsel to believe
that the Final Memorandum (other than the financial or statistical
information contained therein or omitted therefrom as to which such
counsel need not express an opinion), as of its date or on the Closing
Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinions, each such counsel may rely, as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company, the Trust and public officials,
and, with respect to certain matters of Delaware law relating to the
Trust, on the opinion of Xxxxxxxx, Xxxxxx & Finger, special Delaware
counsel to the Trust.
All references in this Section 6(a) to the Final
Memorandum shall be deemed to include any amendment or supplement
thereto at the Closing Date.
(b) The Company and the Trust shall have furnished to the
Representatives the opinion of Xxxxxxxx & Xxxxx, special tax counsel
to the Company and the Trust, dated the Closing Date, to the effect
that:
(i) the Trust will be classified as a grantor
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trust and not as a partnership or an association taxable as a
corporation; for United States federal income tax purposes,
each holder of Convertible Preferred Securities will be
considered the owner of an undivided interest in the
Convertible Debentures, and each holder will be required to
include in its gross income any original issue discount
accrued or other income or gain with respect to its
allocable share of the Convertible Debentures;
(ii) the Convertible Debentures will be classified
for United States federal income tax purposes as indebtedness
of the Company; and
(iii) the statements set forth under the heading
"United States Federal Income Taxation" in the Final
Memorandum, insofar as such statements purport to summarize
the United States federal income tax consequences of the
purchase, ownership and disposition of Convertible Preferred
Securities, provide a fair summary of such consequences.
(c) The Company and the Trust shall have furnished to the
Representatives the opinion of Xxxxxxxx, Xxxxxx & Xxxxxx, special
Delaware counsel to the Trust, dated the Closing Date, to the effect
that:
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act, and all filings required under
the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have been
made;
(ii) under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority to
own its property and conduct its business, all as described in
the Final Memorandum;
(iii) the Declaration constitutes a valid and binding
obligation of the Company
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and the trustees of the Trust, and is enforceable against the
Company and the trustees of the Trust in accordance with its
terms;
(iv) under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i)
to execute and deliver, and to perform its obligations under,
the Purchase Agreement and the Rights Agreement, and (ii) to
issue and perform its obligations under the Securities and the
Common Securities;
(v) under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of the
Purchase Agreement and the Rights Agreement, and the
performance by the Trust of its obligations thereunder, have
been duly authorized by all necessary trust action on the part
of the Trust;
(vi) the Securities have been duly authorized by the
Declaration and are duly and validly issued and fully paid and
nonassessable undivided beneficial interests in the assets of
the Trust and are entitled to the benefits of the Declaration;
the holders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware;
provided, however, that the holders may be obligated, pursuant
to the Declaration, (A) to provide indemnity and/or security
in connection with and pay taxes or governmental charges
arising from transfers or exchanges of Securities certificates
and the issuance of replacement Securities certificates, and
(B) to provide security or indemnity in connection with
requests of or directions to the Property Trustee to exercise
its rights and powers under the Declaration.
(vii) under the Delaware Business Trust Act
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and the Declaration, the issuance of the Securities and the
Common Securities is not subject to preemptive rights;
(vii) the Common Securities have been duly
authorized by the Declaration and are duly and validly issued
and fully paid undivided beneficial interests in the assets of
the Trust and are entitled to the benefits of the Declaration;
and
(ix) the issuance and sale by the Trust of the
Securities and the Common Securities, the exchange of the
Convertible Debentures for the Securities, the execution,
delivery and performance by the Trust of the Purchase
Agreement and the Rights Agreement, the consummation by the
Trust of the transactions contemplated thereby and compliance
by the Trust with its obligations thereunder, (A) do not
violate (1) any of the provisions of the certificate of the
Trust or the Declaration or (2) any applicable Delaware law or
administrative regulation thereunder and (B) do not require
any consent, approval, order or authorization of any Delaware
court or Delaware governmental authority or agency under the
laws of the State of Delaware.
(d) The Chase Manhattan Bank shall have furnished to the
Representatives the opinion of Xxxxxx & Xxxxxx, special counsel to The
Chase Manhattan Bank, dated the Closing Date, to the effect that:
(i) The Chase Manhattan Bank has been duly
incorporated and is validly existing as a banking corporation
in good standing under the laws of the State of New York;
(ii) each of the Declaration, the Indenture and the
Guarantee has been duly authorized, executed and delivered by
the Property Trustee, the Indenture Trustee and the Guarantee
Trustee, respectively, and constitutes a legal, valid and
binding instrument enforceable against the Property Trustee,
the Indenture Trustee and the Guarantee Trustee in accordance
with its
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respective terms (subject, as to the enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally
from time to time in effect);
(iii) no consent, approval, authorization or order
of any federal or New York State banking authority is required
for the consummation of the transactions contemplated by the
Declaration, the Indenture or the Guarantee by the Property
Trustee, the Indenture Trustee or the Guarantee Trustee,
respectively; and
(iv) neither the execution and delivery of the
Declaration, the Indenture or the Guarantee, the consummation
of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation
of, or constitute a default under any law or the charter or
by-laws of The Chase Manhattan Bank or the terms of any
indenture or other agreement or instrument known to such
counsel and to which The Chase Manhattan Bank is a party or
bound or any judgment, order or decree known to such counsel
to be applicable to The Chase Manhattan Bank of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over The Chase Manhattan Bank.
(e) Chase Manhattan Bank Delaware shall have furnished to
the Representatives the opinion of Xxxxx X. Xxxxx, Vice President,
Secretary and Counsel of Chase Manhattan Bank Delaware, dated the
Closing Date, to the effect that Chase Manhattan Bank Delaware has
been duly incorporated and is validly existing as a banking
corporation in good standing under the laws of the State of Delaware;
and has full corporate power and authority to act as trustee of a
statutory business trust under the laws of the State of Delaware.
(f) The Representatives shall have received from Cravath,
Swaine & Xxxxx, special counsel to the Initial Purchasers, such
opinion or opinions, dated the Closing
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Date, with respect to the issuance and sale of the Securities, the
Final Memorandum (as amended or supplemented at the Closing Date) and
other related matters as the Representatives may reasonably require,
and the Company and the Trust shall have furnished to such counsel
such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman
of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined
the Final Memorandum, any amendment or supplement to the Final
Memorandum and this Agreement and that:
(i) the representations and warranties of the
Company 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 the Company has in all
material respects complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or
contemplated by the Final Memorandum (exclusive of any
amendment or supplement thereto).
(h) At the Execution Time and at the Closing Date,
Xxxxxxx & Xxxxxxx L.L.P. shall have furnished to the Representatives a
letter or letters, dated respectively as of the Execution Time and as
of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent
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accountants within the meaning of the Securities Act and the Exchange
Act and the applicable rules and regulations thereunder and Rule 101
of the Code of Professional Conduct of the American Institute of
Certified Public Accountants (the "AICPA") and that they have
performed a review of the unaudited interim financial information as
of September 29, 1996 and for the nine-month periods ended October 1,
1995 and September 29, 1996 in accordance with Statement of Auditing
Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules and pro forma
financial statements included in the Final Memorandum and
reported on by them comply in form in all material respects
with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations
thereunder;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review in accordance with
the standards established by the AICPA of the unaudited
interim financial information as indicated in their reports
included or incorporated in the Final Memorandum; carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
committees of the Company and the Subsidiaries; and inquiries
of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
December 31, 1995, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included in the Final Memorandum do not comply as to
form in all material respects
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with applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements are not, in all material respects, in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the Final
Memorandum; or
(2) with respect to the period subsequent to
September 29, 1996, there were any changes, at a
specified date not more than five business days prior
to the date of the letter, in the long-term debt
(including current maturities) of the Company and its
subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company
or decreases in working capital of the Company and
its subsidiaries as compared with the amounts shown
on the September 29, 1996 consolidated balance sheet
included in the Final Memorandum, or for the period
from September 30, 1996 to such specified date there
were any decreases, as compared with the
corresponding period in the preceding year in the net
sales, total operating income (or increases in total
operating loss), per share amounts of net income,
increase in interest expense or decrease in earnings
before interest, taxes, depreciation and amortization
of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied
by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; or
(3) the information included under the headings
"Selected Consolidated Historical
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and Pro Forma Financial Data" and
"Management--Summary Compensation Table" is not in
conformity with the disclosure requirements of
Regulation S-K.
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Final
Memorandum, including the information included in the
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" included in the Final Memorandum,
agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
All references in this Section 6(h) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at the
date of the letter.
(i) At the Execution Time and at the Closing Date, KPMG
Peat Marwick LLP shall have furnished to the Representatives a letter
or letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants with
respect to IMI plc and its subsidiaries within the meaning of the
Securities Act and the Exchange Act and the applicable rules and
regulations thereunder and Rule 101 of the Code of Professional
Conduct of the AICPA and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules of the IMI
Titanium Business (as defined in the Final Memorandum)
included in the Final Memorandum and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Exchange Act and the related
published rules and regulations thereunder; and
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(ii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Final
Memorandum agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
All references in this Section 6(i) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at the
date of the letter.
(j) At the Execution Time and at the Closing Date, Price
Waterhouse LLP shall have furnished to the Representatives a letter or
letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants with
respect to Titanium Hearth Technologies within the meaning of the
Securities Act and the Exchange Act and the applicable rules and
regulations thereunder and Rule 101 of the Code of Professional
Conduct of the AICPA and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules of the Titanium
Hearth Technologies included in the Final Memorandum and
reported on by them comply in form in all material respects
with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations
thereunder; and
(ii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to
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accounting, financial or statistical information derived from
the general accounting records of the Company and its
subsidiaries) set forth in the Final Memorandum agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
All references in this Section 6(j) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at the
date of the letter.
(k) At the Execution Time and at the Closing Date, Price
Waterhouse LLP shall have furnished to the Representatives a letter or
letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants with
respect to Xxxx Xxxxxxx Metals, Inc. (including any successor thereto)
within the meaning of the Securities Act and the Exchange Act and the
applicable rules and regulations thereunder and Rule 101 of the Code
of Professional Conduct of the AICPA and stating in effect that:
(i) in their opinion the audited financial
statements and financial statement schedules of Xxxx Xxxxxxx
Metals, Inc. included in the Final Memorandum and reported on
by them comply in form in all material respects with the
applicable accounting requirements of the Exchange Act and the
related published rules and regulations thereunder; and
(ii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Final
Memorandum agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
All references in this Section 6(k) to the Final Memorandum
shall be deemed to include any amendment or supplement thereto at the
date of the letter.
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(l) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Final Memorandum, there
shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (d) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries 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
market the Securities as contemplated by the Final Memorandum.
(m) At the Execution Time, the Company shall have furnished
to the Representatives a letter substantially in the form of Exhibit D
hereto from each of Tremont Corporation ("Tremont"), Union Titanium
Sponge Corporation ("UTSC"), Xxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxx
and X. Xxxxxx Xxxxxx, addressed to the Representatives, in which each
such person irrevocably agrees that, without the prior written consent
of Salomon Brothers Inc, such person will not, directly or indirectly,
offer, sell, contract to sell, grant any other option to purchase or
otherwise dispose of, or announce the offering of, any shares of
Common Stock beneficially owned by such person (other than the shares
of Common Stock subject to the option granted to Tremont and UTSC by
IMI Americas, Inc.) or any securities convertible into, or
exchangeable for, shares of Common Stock, or enter into any agreement
to do any of the foregoing, for a period of 90 days following the date
of this Agreement.
(n) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(o) The Registration Agreement shall have been duly executed
and delivered by the Company and the Trust.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material
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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 to the Initial Purchasers, this Agreement and all
obligations of the Initial Purchasers 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 the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section 6 will
be delivered at the offices of Cravath, Swaine & Xxxxx, at Worldwide Plaza, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the Closing Date.
7. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof (other than Section
6(e) or 6(f); provided, however, that the non-satisfaction of Section 6(f) as a
result of any failure on the part of the Company or the Trust to furnish any
document reasonably requested of either of them by Xxxxxxx, Swaine & Xxxxx
shall not relieve the Company of its liability hereunder) is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or the Trust to
perform in any material respect any agreement herein or comply in any material
respect with any provision hereof other than by reason of a default by any of
the Initial Purchasers, the Company will reimburse the Initial Purchasers
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Initial Purchaser, the directors, officers,
employees and agents of each Initial Purchaser and each person who controls any
Initial Purchaser within the meaning of either the Securities 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
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Securities 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 Preliminary Memorandum, the Final Memorandum or any information provided
by the Company to any holder or prospective purchaser of Securities pursuant to
Section 5(h), 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, in the light of the circumstances under which they were made, 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 (i) the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made in the Preliminary Memorandum or the Final Memorandum, or
in any amendment thereof or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company or the Trust by or
on behalf of any Initial Purchasers through the Representatives specifically
for inclusion therein (which the parties hereto understand consists only of the
Initial Purchaser Information) and (ii) such indemnity with respect to any
untrue statement or omission in the Preliminary Memorandum shall not inure to
the benefit of any Initial Purchaser from whom the person asserting any such
loss, claim, damage or liability purchased the Securities that are the subject
thereof, to the extent that any such loss, claim, damage or liability of such
Initial Purchaser occurs under the circumstances where it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment or the parties shall have agreed that (x) the Company had previously
furnished copies of the Final Memorandum to the Initial Purchaser, (y) the
untrue statement or omission of a material fact contained in the Preliminary
Memorandum was completely corrected in the Final Memorandum and (z) there was
not sent or given to such person, at or prior to the written confirmation of
the sale of such Securities to such
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person, a copy of the Final Memorandum. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Initial Purchaser severally agrees to indemnify
and hold harmless each of the Company and the Trust, its respective directors,
officers or trustees, as the case may be, and each person who controls the
Company or the Trust, as the case may be, within the meaning of either the
Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Initial Purchaser, but only with reference
to written information relating to such Initial Purchaser furnished to the
Company or the Trust by or on behalf of such Initial Purchaser through the
Representatives specifically for inclusion in the Preliminary Memorandum or the
Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Company acknowledges that the Initial Purchaser
Information constitutes the only information furnished in writing by or on
behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto), and you, as
the Representatives, confirm that such information is correct.
(c) Promptly after receipt by an indemnified party under
this Section 8 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 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for
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the fees and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such counsel
shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ one
separate counsel (and, in addition, one local counsel in any relevant
jurisdiction for an indemnified party), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. An
indemnifying party will not, without the prior written consent of the
indemnified parties (not to be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any
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reason, the Company and the Initial Purchasers agree 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 the Company, the Trust and one or more
of the Initial Purchasers may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company and by the Initial
Purchasers from the offering of the Securities; provided, however, that in no
case shall any Initial Purchaser (except as may be provided in any agreement
among the Initial Purchasers relating to the offering of the Securities) be
responsible for any amount in excess of the purchase discount or commission
applicable to the Securities purchased by such Initial Purchaser hereunder. If
the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the Initial Purchasers shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Initial Purchasers in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
of the Securities (before deducting expenses), and benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts
and commissions received by the Initial Purchasers from the Company in
connection with the purchase of the Securities hereunder. Relative fault shall
be determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Trust, on the one hand,
or the Initial Purchasers, on the other. The Company and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Initial Purchaser within the meaning of either the
Securities Act or the Exchange Act and each director,
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officer, employee and agent of an Initial Purchaser shall have the same rights
to contribution as such Initial Purchaser, and each person who controls the
Company or the Trust within the meaning of either the Securities Act or the
Exchange Act and each officer and director of the Company or trustee of the
Trust shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more
Initial Purchasers shall fail to purchase and pay for any of the Securities
agreed to be purchased by such Initial Purchaser hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Initial Purchasers shall be
obligated severally to take up and pay for (in the respective proportions which
the principal amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Initial Purchasers) the Securities which the
defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule I hereto, the remaining
Initial Purchasers shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities, and if such non-defaulting
Initial Purchasers do not purchase all the Securities, this Agreement will
terminate without liability to any non-defaulting Initial Purchaser, the
Company or the Trust. In the event of a default by any Initial Purchaser as
set forth in this Section 9, 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 Final Memorandum or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Initial Purchaser of its liability, if any, to the
Company, the Trust or any non-defaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject
35
35
to termination in the absolute discretion of the Representatives, by notice
given to the Company prior to delivery of and payment for the Securities, if
prior to such time (i) trading in any of the Company's securities shall have
been suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited (other than pursuant to the
"circuit breaker" rules) or minimum prices shall have been established on the
New York Stock Exchange or the Nasdaq National Market, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) 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 is such as to
make it, in the reasonable judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Final Memorandum.
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or the Trust or their respective officers or Trustees
and of the Initial Purchasers 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 Initial Purchasers or the Company or the Trust or any of
the officers, directors, trustees or controlling persons referred to in Section
8 hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. 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 them, care of Salomon
Brothers Inc, at Seven World Trade Center, New York, New York 10048; or, if
sent to the Company or the Trust, will be mailed, delivered or telegraphed and
confirmed to it at 0000 Xxxxxxxx (Xxxxx 0000), Xxxxxx, Xxxxxxxx 00000,
Attention: Vice President, General Counsel and Secretary.
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36
13. 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 8 hereof,
and, except as expressly set forth in Section 5(h) hereof, no other person will
have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
15. Business Day. For purposes of this Agreement, "business
day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in The City of New York, New York are
authorized or obligated by law, executive order or regulation to close.
16. Counterparts. This Agreement may be executed in one or
more counterparts, each of which will be deemed to be an original, but all such
counterparts will together constitute one and the same instrument.
37
37
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding
agreement between the Company and the Initial Purchasers.
Very truly yours,
TIMET CAPITAL TRUST I
By:
---------------------------
Name:
Title:
TITANIUM METALS CORPORATION,
By:
---------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written:
Salomon Brothers Inc
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
Incorporated
By: SALOMON BROTHERS INC,
By
-----------------------------
Name:
Title:
For themselves and the other
Initial Purchasers named in
Schedule I to the foregoing Agreement.
38
SCHEDULE I
Number of
Firm Securities
Initial Purchaser to be Purchased
----------------- ---------------
Salomon Brothers Inc ...................... 1,166,668
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Incorporated ................... 1,166,666
Xxxxxx Xxxxxxx & Co. Incorporated ......... 1,166,666
---------
Total ................................ 3,500,000
=========
39
SCHEDULE II
% of the
Jurisdiction of Company's
Incorporation or Voting Securities
Name of Subsidiary Organization Held
------------------ ---------------- -----------------
TIMET Xxxxxx, X.X. France 70
Titanium Hearth Technologies, Delaware 100
Inc.
TIMET Hearth Melting Colorado 100
Corporation
Titanium Hearth Technologies, Pennsylvania 100
G.P.
TIMET UK Limited United Kingdom 100
TIMET Castings Corporation Oregon 100
40
EXHIBIT A
Form of Investment Letter for
Institutional Accredited Investors
November , 1996
--
Titanium Metals Corporation
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Salomon Brothers Inc
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
Incorporated
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
In connection with our proposed purchase of _______ 6-5/8%
Convertible Preferred Securities, Beneficial Unsecured Convertible Securities
(BUCS) (the "Securities") of TIMET Capital Trust I, a Delaware statutory
business trust (the "Trust"), we confirm that:
1. We understand that the Securities, the 6-5/8% Convertible
Junior Subordinated Debentures due 2006 (the "Debentures") of Titanium
Metals Corporation (the "Company") and the common stock, $.01 par
value, of the Company (the "Common Stock") issuable upon conversion
thereof have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We understand and agree, on our
own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Securities are being offered only in
a transaction not involving any public offering within the meaning of
the Securities Act, and (y) that if we should resell, pledge or
otherwise transfer such Securities, Debentures and the Common Stock
issuable upon conversion thereof within
41
2
three years after the last date of the original issuance of the
Securities or, if later, within three months after we cease to be an
affiliate (within the meaning of Rule 144 under the Securities Act) of
the Company, such Securities, Debentures and the Common Stock issuable
upon conversion thereof may be resold, pledged or transferred only (i)
to the Company, (ii) so long as the Securities, Debentures and the
Common Stock issuable upon conversion thereof are eligible for resale
pursuant to Rule 144A under the Securities Act ("Rule 144A"), to a
person whom we reasonably believe is a "qualified institutional buyer"
(as defined in Rule 144A) ("Qualified Institutional Buyer") that
purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A (as indicated by the
box checked by the transferor on the Certificate of Transfer on the
reverse of the certificates if such securities are not in book-entry
form), (iii) in an offshore transaction in accordance with Regulation
S under the Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of the
certificates if such securities are not in book-entry form), but, if
we are a non-U.S. person, prior to the expiration of the "40 day
restricted period" (within the meaning of Rule 903(c)(3) of Regulation
S under the Securities Act), our transferee shall certify that such
transferee is a non-U.S. person, (iv) to an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of the
certificates if such securities are not in book-entry form) that has
certified to the Company and the Property Trustee (or, in the case of
the Debentures and the Common Stock, the Indenture Trustee and the
Transfer Agent, respectively) that it is such an accredited investor
and is acquiring the Securities, Debentures or the Common Stock
issuable upon conversion thereof for investment purposes and not for
distribution, but, if we are a non-U.S. person, prior to the
expiration of the "40 day restricted period" (within the meaning of
Rule 903(c)(3) of Regulation S under the Securities Act), our
transferee shall certify
42
3
that such transferee is a non-U.S. person, (v) pursuant to an
exemption from registration under the Securities Act provided by Rule
144 (if applicable) under the Securities Act, or (vi) pursuant to an
effective registration statement under the Securities Act, in each
case in accordance with any applicable securities laws of any state of
the United States, and we will notify any purchaser of the Securities,
Debentures or the Common Stock issuable upon conversion thereof from
us of the above resale restriction, if then applicable. We further
understand that, in connection with any transfer of the Securities,
Debentures or the Common Stock issuable upon conversion thereof by us,
the Company and the Property Trustee (or, in the case of the
Debentures and the Common Stock, the Indenture Trustee and the
Transfer Agent, respectively) may request, and, if so requested we
will furnish, such certificates, legal opinions and other information
as they may reasonably require to confirm that any such transfer
complies with the foregoing restrictions.
2. We are able to fend for ourselves in the transactions
contemplated by the offering memorandum, we have such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Securities,
the Debentures or the Common Stock issuable upon conversion thereof
and we and any accounts for which we are acting are each able to bear
the economic risk of our or its investment and can afford the complete
loss of such investment.
3. We understand that the minimum aggregate stated
liquidation amount of Securities that may be purchased by an
institutional "accredited investor" is $250,000.
4. We understand that the Company and Salomon Brothers Inc,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx
& Co. Incorporated (the "Initial Purchasers"), and others will rely
upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements and we will agree that if any of the
acknowledgments, representations and warranties deemed to have been
made by us by our
43
4
purchase of the Securities, for our own account or for one or more
accounts as to each of which we exercise sole investment discretion,
are no longer accurate, we shall promptly notify the Company and the
Initial Purchasers.
5. We are acquiring the Securities purchased by us for
investment purposes, and not for distribution, for our own account or
for one or more accounts as to each of which we exercise sole
investment discretion and we are or such account is an institution
which is an "accredited investor" (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act).
6. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
------------------------------
(Name of purchaser)
By:---------------------------
Name:
Title:
Date:
44
EXHIBIT B
Form of Investment Letter for
Executive Officers and Directors of the Company
and Individuals Having a Relationship with the Company
or such Officers and Directors
November , 1996
--
Titanium Metals Corporation
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Salomon Brothers Inc
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
Incorporated
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
In connection with my proposed purchase of _______ 6-5/8%
Convertible Preferred Securities, Beneficial Unsecured Convertible Securities
(BUCS) (the "Securities") of TIMET Capital Trust I, a Delaware statutory
business trust (the "Trust"), I confirm that:
1. I understand that the Securities, the 6-5/8% Convertible
Junior Subordinated Debentures due 2006 (the "Debentures") of Titanium
Metals Corporation (the "Company") and the common stock, $.01 par
value, of the Company (the "Common Stock") issuable upon conversion
thereof have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. I understand and agree, on my
own behalf, (x) that such Securities are being offered only in a
transaction not involving any public offering within the meaning of
the Securities Act, and (y) that if I should resell, pledge or
otherwise transfer such Securities, Debentures and the Common Stock
issuable upon conversion thereof within three years after the last
date of the original issuance of the Securities or, if later, within
three months after I cease to be
45
2
an affiliate (within the meaning of Rule 144 under the Securities Act)
of the Company, such Securities, Debentures and the Common Stock
issuable upon conversion thereof may be resold, pledged or transferred
only (i) to the Company, (ii) so long as the Securities, Debentures
and the Common Stock issuable upon conversion thereof are eligible for
resale pursuant to Rule 144A under the Securities Act ("Rule 144A"),
to a person whom I reasonably believe is a "qualified institutional
buyer" (as defined in Rule 144A) ("Qualified Institutional Buyer")
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A (as indicated by the
box checked by the transferor on the Certificate of Transfer on the
reverse of the certificates if such securities are not in book-entry
form), (iii) in an offshore transaction in accordance with Regulation
S under the Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of the
certificates if such securities are not in book-entry form), (iv) to
an institution that is an "accredited investor" as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act (as indicated by
the box checked by the transferor on the Certificate of Transfer on
the reverse of the certificates if such securities are not in
book-entry form) that has certified to the Company and the Property
Trustee (or, in the case of the Debentures and the Common Stock, the
Indenture Trustee and the Transfer Agent, respectively) that it is
such an accredited investor and is acquiring the Securities,
Debentures or the Common Stock issuable upon conversion thereof for
investment purposes and not for distribution, (v) pursuant to an
exemption from registration under the Securities Act provided by Rule
144 (if applicable) under the Securities Act, or (vi) pursuant to an
effective registration statement under the Securities Act, in each
case in accordance with any applicable securities laws of any state of
the United States, and I will notify any purchaser of the
46
3
Securities, Debentures or the Common Stock issuable upon conversion
thereof from me of the above resale restriction, if then applicable.
I further understand that, in connection with any transfer of the
Securities, Debentures or the Common Stock issuable upon conversion
thereof by me, the Company and the Property Trustee (or, in the case
of the Debentures and the Common Stock, the Indenture Trustee and the
Transfer Agent, respectively) may request, and, if so requested I will
furnish, such certificates, legal opinions and other information as
they may reasonably require to confirm that any such transfer complies
with the foregoing restrictions.
2. I am either (A) an "accredited investor" (as defined in
Rule 501(a)(4), (5) or (6) or (B) an individual having such knowledge
and experience in financial and business matters as to be capable of
evaluating the merits and risks of my investment in the Securities,
the Debentures or the Common Stock issuable upon conversion thereof,
and I am able to fend for myself in the transactions contemplated by
the offering memorandum, am able to bear the economic risk of my
investment and can afford the complete loss of such investment.
3. I understand that the Company and Salomon Brothers Inc,
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx and Xxxxxx Xxxxxxx & Co.
Incorporated (the "Initial Purchasers"), and others will rely upon the
truth and accuracy of the foregoing acknowledgments, representations
and agreements and I will agree that if any of the acknowledgments,
representations and warranties deemed to have been made by me by my
purchase of the Securities, are no longer accurate, I shall promptly
notify the Company and the Initial Purchasers.
4. I am acquiring the Securities purchased by me for
investment purposes, and not for distribution, for my own account.
5. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
------------------------------
Name:
Date:
47
EXHIBIT C
Selling Restrictions for Offers and
Sales outside the United States
(1)(a) The Securities have not been and will not be
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities Act. Each
Initial Purchaser represents and agrees that, except as otherwise permitted by
Section 4(a)(i) or (ii) of the Agreement to which this is an exhibit, it has
offered and sold the Securities, and will offer and sell the Securities, (i) as
part of their distribution at any time and (ii) otherwise until 40 days after
the later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S under the Securities Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that,
at or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(a)(i) or (ii) of the Agreement to which this
is an exhibit), it shall have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and December 4, 1996, except in either case in accordance
with Regulation S or Rule 144A under the Securities Act. Terms used
above have the meanings given to them by Regulation S."
48
2
(b) Each Initial Purchaser also represents and agrees that it
has not entered and will not enter into any contractual arrangement with any
distributor with respect to the distribution of the Securities, except with its
affiliates or with the prior written consent of the Company.
(c) Terms used in this section have the meanings given to
them by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it
has not offered or sold, and will not offer or sell, in the United Kingdom, by
means of any document, any Securities other than to persons whose ordinary
business it is to buy or sell shares or debentures, whether as principal or as
agent (except in circumstances which do not constitute an offer to the public
within the meaning of the Companies Act 1985 of Great Britain), (ii) it has
complied and will comply with all applicable provisions of the Financial
Services Act 1986 of the United Kingdom with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 9(3) of the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom the document may otherwise lawfully be issued or passed
on.
49
EXHIBIT D
Form of Lock-Up Letter
November __, 1996
Salomon Brothers Inc
Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co.
Incorporated
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
The undersigned understands that you and certain other firms
propose to enter into a purchase agreement (the "Purchase Agreement") providing
for the purchase by you and such other firms (the "Initial Purchasers") of the
6- 5/8% Convertible Preferred Securities, Beneficial Unsecured Convertible
Securities (BUCS) (the "Securities") of TIMET Capital Trust I (the "Trust"),
which are convertible at the option of the holder thereof into the common
stock, $.01 par value (the "Common Stock") of Titanium Metals Corporation (the
"Company"), and that the Initial Purchasers propose to resell the Securities to
investors as more fully described under the heading "Plan of Distribution" in
the final Offering Memorandum relating to the Securities dated November 20,
1996.
In consideration of the execution of the Purchase Agreement by
the Initial Purchasers, and for other good and valuable consideration, the
undersigned hereby irrevocably agrees that, without the prior written consent
of Salomon Brothers Inc, the undersigned will not, directly or indirectly,
offer, sell, contract to sell, grant any other option to purchase or otherwise
dispose of, or announce the offering of, any shares of Common Stock [(other
than the shares of Common Stock subject to the option granted to the
undersigned by IMI Americas, Inc.)] or any securities convertible into, or
exchangeable for, shares of Common Stock, or enter into any agreement to do any
of the
50
2
foregoing, for a period of 90 days following the date of the Purchase
Agreement; provided, however, that the undersigned may pledge shares of Common
Stock to secure extensions of credit in the ordinary course.
The undersigned agrees that the provisions of this letter
agreement shall be binding upon the successors, assigns, heirs and personal
representatives of the undersigned.
In furtherance of the foregoing, the Company and First Chicago
Trust Company of New York, its Transfer Agent, are hereby authorized to decline
to make any transfer of securities if such transfer would constitute a
violation or breach of this letter agreement.
It is understood that, if the Purchase Agreement does not
become effective, or if the Purchase Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
the payment for and delivery of the Securities, the undersigned shall be
released from our obligations under this letter agreement without any action by
such person.
This letter agreement shall be governed by and construed in
accordance with the laws of the State of New York (other than its rules of
conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby).
Very truly yours,
[CORPORATE STOCKHOLDER,
By:---------------------------
Name:
Title:
Date:]
[------------------------------
Name:
Date:]
