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EXHIBIT 1.1
2,200,000 Shares
SINTER METALS, INC.
CLASS A COMMON STOCK, $.001 PAR VALUE
UNDERWRITING AGREEMENT
February ___, 1997
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February ___, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
XxXxxxxx & Company Securities, Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. International
Limited
Salomon Brothers International
Limited
XxXxxxxx & Company Securities, Inc.
x/x Xxxxxx Xxxxxxx & Xx. Xxxxxxxxxxxxx Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx E 14 4 Q A
England
Dear Sirs:
Sinter Metals, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters (as defined below) an aggregate
of 2,200,000 shares of the Class A common stock, $.001 par value per share, of
the Company (the "Firm Shares").
It is understood that, subject to the conditions hereinafter stated,
1,760,000 Firm Shares (the "U.S. Firm Shares") will be sold to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters") in connection
with the offering and sale of such U.S. Firm Shares in the United States and
Canada to United States and Canadian Persons (as such terms are defined in the
Agreement Between U.S. and International Underwriters of even date herewith),
and 440,000 Firm Shares (the "International Shares") will be sold to the
several International Underwriters named in Schedule II hereto (the
"International Underwriters") in connection with the offering and sale of such
International Shares outside the United States and Canada to persons other than
United States and Canadian Persons. Xxxxxx Xxxxxxx & Co. Incorporated,
Salomon Brothers Inc and XxXxxxxx & Company Securities, Inc. shall act as
representatives (the "U.S. Representatives") of the several U.S. Underwriters,
and Xxxxxx Xxxxxxx & Co. International Limited, Salomon Brothers International
Limited and XxXxxxxx & Company Securities, Inc. shall act as representatives
(the "International Representatives") of the several International
Underwriters. The U.S. Underwriters and the International Underwriters are
hereinafter collectively referred to as the "Underwriters."
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The Company also proposes to issue and sell to the several U.S.
Underwriters not more than an aggregate of 330,000 additional shares of the
Company's Class A common stock, $.001 par value per share (the "Additional
Shares"), if and to the extent that the U.S. Representatives shall have
determined to exercise, on behalf of the U.S. Underwriters, the right to
purchase such shares of common stock granted to the U.S. Underwriters in
Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares." The shares of common stock, $0.001
par value per share, of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "Common
Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement relating to the Shares. The
registration statement contains two prospectuses to be used in connection with
the offering and sale of Shares: the U.S. prospectus to be used in connection
with the offering and sale of Shares in the United States and Canada to United
States and Canadian Persons, and the international prospectus to be used in
connection with the offering and sale of Shares outside the United States and
Canada to persons other than United States and Canadian Persons. The
international prospectus is identical to the U.S. prospectus except for the
names of the Underwriters and the outside front cover page. The registration
statement as amended at the time it becomes effective, including the
information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act of 1933,
as amended (the "Securities Act"), is hereinafter referred to as the
"Registration Statement"; the U.S. prospectus and the international prospectus
of the date they are filed pursuant to Rule 424(b) under the Securities Act are
hereinafter collectively referred to as the "Prospectus." If the Company has
filed an abbreviated registration statement to register additional shares of
Common Stock pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective under
the Securities Act; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented through the Closing
Date (as defined in Section 4), if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement when it became
effective and the Prospectus when it is first filed pursuant to Rule
424(b), did or will comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus when it is first filed pursuant to
Rule 424(b) and on the Closing Date and, as amended or supplemented,
if applicable, will not contain any untrue statement of a material
fact or omit to state a material
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fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this Section 1(b) do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by or on behalf of such
Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the business, operations, results of
operations or financial condition of the Company and its subsidiaries,
taken as a whole (a "Material Adverse Effect").
(d) Each U.S. Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing could not have a
Material Adverse Effect; all of the issued shares of capital stock of
each U.S. Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by the Company free and clear of all liens, encumbrances,
equities or claims. Each Foreign Subsidiary has been duly organized
and validly existing under the laws of its jurisdiction of
organization and has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus;
the shares of stated capital of each Foreign Subsidiary have been
validly issued and are fully paid and nonassessable and are owned
directly or indirectly by the Company free and clear of all liens,
encumbrances, equities or claims.
(e) The authorized capital stock of the Company conforms
as to legal matters to the description thereof contained in the
Prospectus.
(f) The shares of Common Stock outstanding prior to the
issuance of Shares have been duly authorized and are validly issued,
fully paid and non-assessable.
(g) The Shares have been duly authorized and, when issued
and delivered against payment therefor in accordance with the terms of
this Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Shares will not be subject to any preemptive
or similar rights.
(h) This Agreement has been duly authorized, executed and
delivered by the Company.
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(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except those which
have already been obtained and such as may be required by the
securities or Blue Sky laws of the various states in connection with
the offer and sale of the Shares.
(j) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
subsequent to the respective dates information is given in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this agreement).
(k) There are no (i) legal or governmental proceedings
pending or, to the best of the Company's knowledge, threatened to
which the Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or (ii) statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
or filed as required.
(l) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(m) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended.
(n) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except as described in the
Registration Statement or the Prospectus or where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
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conditions of such permits, licenses or approvals would not, singly or
in the aggregate, have a Material Adverse Effect.
(o) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties), except as described in the Registration
Statement or Prospectus, which would, singly or in the aggregate, have
a Material Adverse Effect.
(p) There are no contracts, agreements or understandings
between the Company and any person granting such person the right (i)
to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or (ii)
to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement, except in each case
as described in the Prospectus and for which the Company has received
a written waiver of such rights for the filing of the Registration
Statement.
(q) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
(i) the Company and its subsidiaries have not incurred any material
liability or obligation, direct or contingent, nor entered into any
material transaction not in the ordinary course of business; (ii) the
Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock other than ordinary and customary dividends;
and (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries,
except in each case as described in or contemplated by the Prospectus.
(r) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and facilities held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries, in each case except as described in or contemplated by
the Prospectus.
(s) The Company and it subsidiaries own or possess, or
can acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and neither the
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Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole.
(t) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in engaged in any unfair labor
practice which could reasonably be expected to have a Material Adverse
Effect. Except as disclosed in the Prospectus and except for matters
which are not material individually or in the aggregate to the Company
and its subsidiaries, (i) there is (1) no unfair labor practice
complaint pending, or to the best of their knowledge, threatened
against the Company or any of its subsidiaries before the National
Labor Relations Board, and no grievance or arbitration proceeding
arising out of or under collective bargaining agreements is pending
or, to the best of their knowledge, threatened, (2) no strike, labor
dispute, slowdown or stoppage pending or threatened against the
Company or any of its subsidiaries and (3) no union representation
question existing with respect to the employees of the Company or any
of its subsidiaries and no union organizing activities are taking
place and (ii) there has been no violation of any federal, state,
local or foreign law relating to discrimination in the hiring,
promotion, or pay of employees, or any applicable wage or hour laws,
nor any provisions of the Employee Retirement Income Security Act of
1974 ("ERISA") or the rules and regulations promulgated thereunder.
(u) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as management of the Company believes to
be prudent and customary in the businesses in which the Company and
its subsidiaries are engaged; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not materially and
adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and its subsidiaries,
taken as a whole, except as described in or contemplated by the
Prospectus.
(v) The Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses as described in the Prospectus except
where failure to possess such certificates, authorizations, or permits
would not, singly or in the aggregate, have a Material Adverse Effect.
Neither the Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or any other modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, except as
described in or contemplated by the Prospectus.
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(w) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences. The
pro forma financial statements and other pro forma financial
information (including the notes thereto) included in the Prospectus
(A) have been prepared in all in accordance with applicable
requirements of Rule 11-02 of Regulation S-X promulgated under the
Act, (B) have been properly compiled on the basis described therein,
and (C) the assumptions used in the preparation of the pro forma
financial information included in the Prospectus are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein and reflect all of
the adjustments necessary to summarize fairly the pro forma position
of the entities purported to be shown thereby at the dates indicated.
(x) The Company has complied with all provisions of
Section 517.075 of the Florida Statutes relating to doing business
with the Government of Cuba or with any person or affiliate located in
Cuba.
(y) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required. Each contract to which
the Company or any subsidiary is a party and which is required to be
filed as an exhibit to the Registration Statement has been duly
authorized, executed and delivered by the Company or such subsidiary,
constitutes a valid and binding agreement of the Company or such
subsidiary and is enforceable against the Company or such subsidiary
in accordance with the terms thereof.
(z) Neither the Company nor any of its subsidiaries nor,
to the Company's knowledge, any employee or agent of the Company or
any subsidiary has made any payment of funds of the Company or any
subsidiary or received or retained any funds in violation of any law,
rule or regulation or of a character required to be disclosed in the
Prospectus.
(aa) Except as disclosed in the Registration Statement and
the Prospectus, there are no business relationships or related party
transactions required to be disclosed therein by Item 404 of
Regulation S-K promulgated under the Act.
(ab) The Company has delivered to the Underwriter true,
correct and complete execution copies of the Powder Metal Stock
Purchase Agreement by and between the Company and XXXX Holding AG and
dated October 7, 1996 and the Krebsoge Stock Purchase Agreement by and
between the Company and XXXX Holding AG and dated October 11, 1996
(collectively, the "Acquisition Agreements") and to the knowledge of
the
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Company, each of the representations and warranties of XXXX Holding AG
contained in the Acquisition Agreements are not untrue or incomplete
in any material respect.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedules I and II
hereto opposite its name at $________ a share (the "Purchase Price").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the U.S. Underwriters the Additional Shares, and the U.S. Underwriters shall
have a one-time right to purchase, severally and not jointly, up to 330,000
Additional Shares at the Purchase Price. If the U.S. Representatives, on
behalf of the U.S. Underwriters, elect to exercise such option, the U.S.
Representatives shall so notify the Company in writing not later than 30 days
after the date of this Agreement, which notice shall specify the number of
Additional Shares to be purchased by the U.S. Underwriters and the date on
which such Additional Shares are to be purchased. Such date may be the same as
the Closing Date (as defined below) but not earlier than the Closing Date nor
later than ten business days after the date of such notice. Additional Shares
may be purchased as provided in Section 4 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each U.S. Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as the U.S.
Representatives may determine) that bears the same proportion to the total
number of Additional Shares to be purchased as the number of U.S. Firm Shares
set forth in Schedule I hereto opposite the name of such U.S. Underwriter bears
to the total number of U.S. Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares of Common Stock or any such
securities are now owned or hereafter acquired), or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the
issuance by the Company of (i) shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised in writing or (ii) the
issuance or granting of options pursuant to the terms of existing stock option
plans; provided, however, such options are not exercisable during the period
ending 90 days after the date of the Prospectus.
3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the
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Registration Statement and this Agreement have become effective as in your
judgment is advisable. The Company is further advised by you that the Shares
are to be offered to the public initially at U.S. $________ a share (the
"Public Offering Price") and to certain dealers selected by you at a price that
represents a concession not in excess of U.S. $________ a share under the
Public Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of U.S. $________ a share, to any
Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the
several Underwriters at 10:00 A.M., New York City time, on ___________, 1997,
or at such other time on the same or such other date, not later than
___________, 1997, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 A.M., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such
other date, in any event not later than, ___________, 1997, as shall be
designated in writing by the U.S. Representatives. The time and date of such
payment are hereinafter referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly
paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations
of the Company to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 4:00 p.m. (New York time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement), that, in your judgment, is
material
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and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner
contemplated in the Prospectus; and
(ii) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review of a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g) (2) under the Securities Act.
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (ii) of
Section 5(a) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The executive officer signing and delivering the certificate
for the Company may rely upon the best of his knowledge as to
proceedings threatened.
(c) The Underwriters shall have received on the Closing
Date an opinion of Xxxxx, Day, Xxxxxx & Xxxxx, outside counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in Ohio, Michigan,
Pennsylvania, Illinois, Indiana and North Carolina except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(ii) Powder Metal Holdings, Inc. ("PMH") has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
organization and has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus; Krebsoge Sinterholding GmbH ("Krebsoge") is a
limited liability company duly formed and is validly existing
under the laws of the Federal Republic of Germany and has the
requisite power and authority to own its property and to
conduct its business as described in the Prospectus.
(iii) all of the issued shares of Capital Stock of
each of Krebsoge and PMH have been validly issued, are fully
paid and non-assessable and are owned directly by the Company,
free and clear of all liens, encumbrances, equities or claims;
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(iv) the shares of Common Stock outstanding prior
to the issuance of the Shares have been duly authorized and
are validly issued, fully paid and non-assessable;
(v) the Shares to be issued and sold by the
Company have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor as
provided by the Agreement, will be validly issued, fully paid
and non-assessable, and, to our knowledge, the issuance of
such Shares will not be subject to any preemptive or similar
rights;
(vi) the Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not conflict with or result in a default
under any of the terms and provisions of the certificate of
incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any agreement or other instrument
binding upon the Company which is known to us or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, and, to the best of such
counsel's knowledge, will not result in the violation of any
statute or regulation or any judgment or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of or qualification with any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of
the Shares by the U.S. Underwriters;
(viii) the statements (A) in the Prospectus under
the captions "Description of Capital Stock," and (B) in the
Registration Statement in Items 14 and 15, in each case
insofar as such statements purport to summarize the legal
matters, documents or proceedings referred to therein, present
fair summaries of such legal matters, documents or
proceedings;
(ix) after due inquiry, such counsel does not have
knowledge of (i) any legal or governmental proceeding which is
pending or overtly threatened against the Company or any of
its subsidiaries or to which any of the properties of the
Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and is not so described or (ii) any agreement,
contract or other documents that are required to be described
in the Registration Statement or the Prospectus or required to
be filed as exhibits to the Registration Statement that are
not described or filed as required;
(x) the Company is not an "investment company",
as such term is defined in the Investment Company Act of 1940,
as amended;
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(xi) In the course of preparation by the Company
of the Registration Statement and the Prospectus, such counsel
has had discussions with officers, directors and employees of
the Company, the independent accountants who examined certain
of the financial statements of the Company and its
consolidated subsidiaries contained in the Registration
Statement and Prospectus, counsel for the Underwriters, and
your representatives concerning the information contained in
the Registration Statement and Prospectus and the proposed
responses to various items in Form S-1 under the Securities
Act. Based upon our examination of the Registration Statement
and the Prospectus, our investigations made in connection with
the preparation of the Registration Statement and the
Prospectus and our participation in the discussions referred
to above, such counsel is of the opinion that the Registration
Statement and the Prospectus (in each case, except for (i) the
financial statements, financial schedules, and other financial
and statistical information included therein, and (ii) the
information referred to under the caption "Experts" as having
been included therein on the authority of Xxxxxx Xxxxxxxx LLP,
Deloitte & Touche LLP, Price Waterhouse GmbH and BDO
Grunewalder Treuhand GmbH, as experts, as to which such
counsel expresses no opinion), at the time the Registration
Statement became effective under the Securities Act, complied
as to form in all material respects with the Securities Act
and the respective rules and regulations thereunder.
(xii) Such counsel has not independently verified
and is not passing upon, and does not assume any
responsibility for the accuracy, completeness or fairness
(except as set forth in clause (viii) above) of the
information contained in the Registration Statement or
Prospectus. Based upon such counsel's examination,
investigation and participation in the discussions described
above, however, no facts have come to such counsel's attention
that cause such counsel to believe that the Registration
Statement (except for (i) the financial statements, financial
schedules, and other financial and statistical information
included therein, and (ii) the information referred to under
the caption "Experts" as having been included therein on the
authority of Xxxxxx Xxxxxxxx LLP, Deloitte & Touche LLP, Price
Waterhouse GmbH and BDO Grunewalder Treuhand GmbH, as experts,
as to which such counsel expresses no opinion), at the time it
became effective contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein
not misleading, or that the Prospectus (with the foregoing
exceptions) contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing
Date an opinion of Xxxxxx Xxxxxx & Xxxxx, counsel for the
Underwriters, dated the Closing Date, covering the matters referred to
in clauses (v), (vi), (vii) (but only as to the statements in the
Prospectus under "Description of Capital Stock" and "Underwriters")
and (xii) of Section 5(c) above.
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With respect to clause (xii) of Section 5(c) above, Xxxxx,
Day, Xxxxxx & Xxxxx and Xxxxxx Xxxxxx & Xxxxx may state that their
opinion and belief are based upon their participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification
except as specified.
(f) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or
the Closing Date, as the case may be, in form and substance
satisfactory to you, from Xxxxxx Xxxxxxxx LLP, Deloitte & Touche LLP,
Price Waterhouse GmbH and BDO Grunewalder Treuhand GmbH, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in the
form of Exhibit A hereto, between you and certain stockholders,
officers and directors of the Company relating to sales and certain
other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
(h) The Shares shall have been approved for inclusion on
the New York Stock Exchange, subject to official notice of issuance.
The several obligations of the U.S. Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the U.S.
Representatives on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters related
to the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to you, without charge, five signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to
you in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this
Agreement and during the period mentioned in paragraph (c) below, as
many copies of the Prospectus and any supplements and amendments
thereto or to the Registration Statement as you may reasonably
request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and (i) with respect to supplements
or amendments required by clause (c) below, provide you with the
reasonable opportunity to comment and (ii) with respect to all other
amendments or
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supplements not to file any such proposed amendment or supplement to
which you reasonably object, and in each case, to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to
such rule.
(c) If, during such period after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the
Company) to which Shares may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request; provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement
covering the twelve-month period ending ___________, 1997 that
satisfies the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of the
obligations of the Company under this Agreement, including: (i) the
fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and delivery
of the Shares under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky or Legal Investment memorandum in connection with the
offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer
and sale under state securities laws as provided in Section 6(d)
hereof, including filing fees and reasonable fees and disbursements of
counsel for the
-14-
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Underwriters in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum; provided that in no
event shall the Company be responsible for any amounts over $_____,
(iv) all filing fees incurred in connection with the review and
qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all costs and expenses
incident to listing the Shares on the New York Stock Exchange, (vi)
the cost of printing certificates representing the Shares, (vii) the
costs and charges of any transfer agent, registrar or depositary,
(viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Shares, including, without
limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives (other
than the Underwriters) and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with
the road show, and (ix) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 7 entitled
"Indemnity and Contribution", and the last paragraph of Section 9
below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto),
or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting such losses, claims,
damages or liabilities purchased Shares, or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so
-15-
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amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or (b), such
person (the "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party")
in writing and the Indemnifying Party, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood that
the Indemnifying Party shall not, in respect of the legal expenses of
any Indemnified Party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such Indemnified Parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated in the case
of parties indemnified pursuant to Section 7(a). In the case of
parties indemnified pursuant to Section 7(b) for the Company, and such
directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding
the
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foregoing sentence, if at any time an Indemnified Party shall have
requested an Indemnifying Party to reimburse the Indemnified Party for
fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than
30 days after receipt by such Indemnifying Party of the aforesaid
request and (ii) such Indemnifying Party shall not have reimbursed the
Indemnified Party in accordance with such request prior to the date of
such settlement. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
Section 7(a) or (b) is unavailable to an Indemnified Party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Party under such
paragraph, in lieu of indemnifying such Indemnified Party thereunder,
shall contribute to the amount paid or payable by such Indemnified
Party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Indemnifying Party or Parties on the one hand and the
Indemnified Party or Parties on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Indemnifying Party or Parties
on the one hand and of the Indemnified Party or Parties on the other
hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in
the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Company and
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 7
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 7(d). The amount paid or payable by an
Indemnified Party as a result of the losses, claims,
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damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. 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. The remedies
provided for in this Section 7 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
Indemnified Party at law or in equity.
(f) The indemnity and contribution provisions contained
in this Section 7 and the representations, warranties and other
statements of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for
any of the Shares.
8. Termination. This Agreement shall be subject to termination
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on or by, as the case may be, any of
the New York Stock Exchange, (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your judgment,
is material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv) of this Section 8, such event singly or together
with any other such event makes it, in your judgment, impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I or Schedule
II bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused
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to purchase on such date; provided that in no event shall the number of Shares
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-tenth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date or the Option Closing Date, as the case may be, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and
the aggregate number of Firm Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Firm Shares to be purchased
on such date, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date or the Option Closing
Date, as the case may be, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on
the Option Closing Date, any U.S. Underwriter or Underwriters shall fail or
refuse to purchase Additional Shares and the aggregate number of Additional
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased, the non-defaulting U.S.
Underwriters shall have the option to (i) terminate their obligation hereunder
to purchase Additional Shares or (ii) purchase not less than the number of
Additional Shares that such non-defaulting U.S. Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under
this Section 9 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
12. Headings. The Headings of the Sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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Very truly yours,
SINTER METALS, INC.
By __________________________________
a duly authorized signatory
Accepted, as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
SALOMON BROTHERS INC
XxXXXXXX & COMPANY SECURITIES, INC.
Acting severally on behalf of themselves
and the several U.S. Underwriters named
in Schedule I hereto.
By Xxxxxx Xxxxxxx & Co. Incorporated
By __________________________________________
a duly authorized signatory
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
XxXXXXXX & COMPANY SECURITIES, INC.
Acting on behalf of themselves and the
several International Underwriters
named in Schedule II hereto.
By Xxxxxx Xxxxxxx & Co. International Limited
By __________________________________________
a duly authorized signatory
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Schedule I
U.S. Underwriters
Number of
Firm Shares
Underwriter To Be Purchased
----------- -------------------
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
-------------------
===================
Total U.S. Firm Shares . . . . . . . . . .
23
Schedule II
International Underwriters
Number of
Firm Shares
Underwriter To Be Purchased
----------- -----------------
Xxxxxx Xxxxxxx & Co. International Limited
Salomon Brothers International Limited
-----------------
=================
Total International Firm Shares . . . . . . .
