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EXHIBIT B
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 28, 1998 (this "Agreement"),
among TIMET Finance Management Company, a Delaware corporation (the "Investor"),
Titanium Metals Corporation, a Delaware corporation ("TMC"), Societe
Industrielle de Materiaux Avances, a societe anonyme organized under the laws of
the Republic of France ("SIMA"), LWH Holding S.A., a Luxembourg corporation
("LWH"), and Advanced Materials Investments Holding S.A., a Luxembourg
corporation ("AMI" and together with SIMA and LWH, the "Stockholders");
WHEREAS, Special Metals Corporation, a Delaware corporation (the
"Company"), the Investor and TMC have entered into an Investment Agreement,
dated as of July 8, 1998, as amended on October 28, 1998 (as so amended, the
"Investment Agreement"), which provides for, among other things, the issuance
and sale by the Company to the Investor of 1,600,000 shares of its 6.625% Series
A Senior Convertible Preferred Stock, having a liquidation amount of $50.00 per
share (the "Preferred Securities");
WHEREAS, as of the date hereof, SIMA owns 5,952,000 shares of Common
Stock, par value $.01 per share, of the Company ("Common Stock"), LWH owns
3,580,000 shares of Common Stock and AMI owns 2,092,500 shares of Common Stock;
WHEREAS, as a condition to the willingness of the Investor and TMC to
enter into the Investment Agreement, the Investor and TMC have required that the
Stockholders agree, and in order to induce the Investor and TMC to enter into
the Investment Agreement, the Stockholders have agreed, to enter into this
Agreement with respect to all the shares of Common Stock now owned and which may
hereafter be acquired by the Stockholders (the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I.
Section 1.01. Voting Agreement. Each of the Stockholders hereby agrees
that during the time this Agreement is in effect, at any meeting of the
stockholders of the Company, however called, and in any action by consent of the
stockholders of the Company, the Stockholder shall vote the Shares: (a) in favor
of the issuance of shares of the Company's Common Stock upon conversion of the
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Preferred Securities, upon the terms and conditions set forth in the Investment
Agreement and the Certificate of Designation (as such term is defined in the
Investment Agreement) (such vote is referred to herein as the "Conversion
Vote"), and (b) in favor of the election to the Board of Directors of the
Company of the Investor Nominees (as defined under the Investment Agreement)
selected by the Investor in accordance with Section 5 of the Investment
Agreement and, if applicable, Section 9(b)(iii) of the Certificate of
Designation. Each of the Stockholders acknowledges receipt and review of a copy
of the Investment Agreement and the Certificate of Designation.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each of the Stockholders hereby represents and warrants to each of the
Investor and TMC as follows:
Section 2.01. Authority Relative to This Agreement. The Stockholder has
all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly and validly authorized by the Stockholder,
and no other proceedings on the part of the Stockholder are necessary to
authorize this Agreement or to consummate such transactions.
Section 2.02. Enforceability. This Agreement has been duly authorized,
executed and delivered by the Stockholder and, assuming the due authorization,
execution an delivery by the Investor and TMC, constitutes a valid and binding
agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms.
Section 2.03. No Conflict. (a) The execution and delivery of this
Agreement by the Stockholder do not, and the performance of this Agreement by
the Stockholder shall not, (i) conflict with or violate the organizational
documents of the Stockholder, (ii) conflict with or violate any material law,
rule, regulation, order, judgment or decree applicable to the Stockholder or by
which the Shares are bound or affected or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse or time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or the Shares are bound or affected, except, in the case of clauses
(ii) and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences which would not materially prevent or delay the performance by the
Stockholder of its obligations under this Agreement.
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(b) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the Stockholder
shall not, require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental entity or agency except for applicable
requirements, if any, of the Securities Exchange Act of 1934, as amended, and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not materially prevent
or delay the performance by the Stockholder of its obligations under this
Agreement.
Section 2.04. Title to the Shares. As of the date hereof, the
Stockholder is the record and beneficial owner of 5,952,000 shares of Common
Stock in the case of SIMA, 3,580,000 shares of Common Stock in the case of LWH,
and 2,092,500 shares of Common Stock in the case of AMI. Such Shares are all the
securities of the Company owned, either of record or beneficially, by the
Stockholder. The Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares, except to
the extent set forth in the Stockholders' Agreement, dated as of February 25,
1997, as amended, among the Company and the Stockholders (the "Stockholders'
Agreement").
ARTICLE III.
COVENANTS OF THE STOCKHOLDERS
Section 3.01. No Inconsistent Agreement. Each of the Stockholders
hereby covenants and agrees that, except as contemplated by this Agreement, the
Stockholders' Agreement and the Investment Agreement, the Stockholder shall not
enter into any voting agreement or grant a proxy or power of attorney with
respect to the Shares which is inconsistent with this Agreement or commit any
other act that could restrict or otherwise affect such Stockholders' legal
power, authority and right to vote all shares in accordance with this Agreement;
provided, however, that nothing in this Section 3.1 shall prevent the transfer,
sale, pledge or other disposition by any Stockholder of its Shares, subject to
the provisions of Section 3.2.
Section 3.02. Transfer of Title. Each of the Stockholders hereby
covenants and agrees that until such time as the Stockholder has satisfied its
obligations with respect to the Conversion Vote as provided under Section 1.1,
the Stockholder shall not transfer record or beneficial ownership of any of its
Shares unless (i) the transferee agrees in writing to be bound by the terms and
conditions of this Agreement, or (ii) immediately following such transfer the
Stockholders collectively own Shares representing in the aggregate at least 51%
of the voting power of the outstanding voting securities of the Company.
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ARTICLE IV.
MISCELLANEOUS
Section 4.01. Termination. This Agreement shall terminate upon the
earlier of (i) the termination of the Investment Agreement, or (ii) the first
day upon which the Investor, TMC or their subsidiaries are no longer entitled to
designate any Investor Nominee to the Board of Directors of the Company in
accordance with the Investment Agreement or, if applicable, the Certificate of
Designation.
Section 4.02. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 4.03. Entire Agreement. This Agreement constitutes the entire
agreement among the Company and the Stockholders with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, among the Company and the Stockholders with respect to the
subject matter hereof.
Section 4.04. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto. All waivers must be in
writing.
Section 4.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule or law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of this Agreement is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereby shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in a mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated.
Section 4.06. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law; provided, however, that the laws of the State of Delaware shall govern the
relative rights, obligations, powers, duties and other internal affairs of the
Company.
Section 4.07. Jurisdiction. All disputes arising in connection with
this Agreement and all agreements entered into pursuant to this Agreement shall
be finally settled under the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by three arbitrators appointed in accordance
with said Rules. The
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arbitrators shall be attorneys or judges of high repute. The place of
arbitration shall be Brussels, Belgium. The proceedings shall be conducted in
the English language. The expenses of the arbitration shall be borne between the
parties as determined by the arbitrators; each of the parties, however, shall
bear the expenses of its own legal counsel. This Agreement shall be enforceable
and judgment upon any award rendered by the arbitrators may be entered in any
court of competent jurisdiction.
Section 4.08. Benefit of Agreement. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns.
Section 4.09. Notices. All notices and other communications under this
Agreement shall be in writing and shall be considered given when delivered
personally, or by prepaid cable, telex or telecopy, confirmed by a registered or
certified airmail letter, postage prepaid, addressed to the parties at the
following addresses (or at such other address as a party may specify by notice
hereunder):
If to SIMA, to it at:
41, Xxx xx Xxxxxxxx, XX 000
00000 Neuilly Sur Seine Cedex
France
Telecopy: (0) 00000000
If to LWH, to it at:
Xxxxxxxxx Xxxxx 0
X-0000 Xxxxxxxxxx
Xxxxxxxx: 000-00-00-00
If to AMI, to it at:
0X Xxx Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
Telecopy: 000-00-00-00
If to the Investor or TMC, to it at:
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Section 4.10. Captions. The captions herein are inserted for
convenience only and shall not define, limit, extend or describe the scope of
this Agreement or affect the construction hereof.
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Section 4.11. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument. This
Agreement shall become effective and binding upon each party hereto upon the
execution and delivery of a counterpart hereof by such party.
IN WITNESS WHEREOF, the Stockholders, the Investor and TMC have caused
this Agreement to be duly executed on the date hereof.
TIMET FINANCE MANAGEMENT COMPANY
By: /s/ XXXXX X. XXXXXXXX
-------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
TITANIUM METALS CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, General Counsel and
Secretary
SOCIETE INDUSTRIELLE DE MATERIAUX
AVANCES
By: /s/ XXXXXXX XXXXX
---------------------
Name: Xxxxxxx Xxxxx
Title: Gerant
LWH HOLDING S.A.
By: /s/ XXXXXX X. XXXXXX
------------------------
Name: Xxxxxx X. Xxxxxx
Title:
ADVANCED MATERIALS INVESTMENTS
HOLDING S.A.
By: /s/ XXXX XXXXXXXX
---------------------
Name: Xxxx Xxxxxxxx
Title:
