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EXHIBIT 1.1
TITANIUM METALS CORPORATION
[ ] Shares
Common Stock
($.01 par value)
UNDERWRITING AGREEMENT
New York, New York
, 1997
To the Representatives
named in Schedule I hereto
of the Underwriters
named in Schedule II hereto
Dear Sirs:
Corporation, a corporation (the "Selling
Stockholder"), proposes to issue and sell to the underwriters named in Schedule
II hereto (the "Underwriters"), for whom you (the "Representatives") are acting
as representatives, the number of shares of Common Stock, $.01 par value
("Common Stock") of Titanium Metals Corporation, a Delaware corporation (the
"Company") set forth in Schedule I hereto (the "Securities"). If the firms
listed in Schedule II hereto include only the firms listed in Schedule I
hereto, then the terms "Underwriters" and Representatives", as used herein,
shall be deemed to refer to such firm or firms.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees
with, each Underwriter and the Selling Stockholder as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in subparagraph
(a)(iv) hereof. If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), subparagraph (a)(i) below is applicable and,
if the offering of the Securities is a Non-Delayed Offering (as so specified),
subparagraph (a)(ii) below is applicable.
(i) The Company has filed with the Securities and
Exchange Commission (the Commission") a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-1
under the Securities Act of 1933 (the "Act"), including a basic
prospectus, for
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registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, and may
have used a Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so amended, has
become effective. The offering and sale of the Securities is a Delayed
Offering and, although the Basic Prospectus may not include all the
information with respect to the Securities and the offering thereof
required by the Act and the rules thereunder to be included in the
Final Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included therein as
of the Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2), (3) or (5) a final supplement to
the form of prospectus included in such registration statement
relating to the Securities and the offering thereof. As filed, such
final prospectus supplement shall include all required information
with respect to the Securities and the offering thereof and, except to
the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you and the Selling Stockholder prior to the Execution
Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary
Final Prospectus) as the Company has advised you and the Selling
Stockholder, prior to the Execution Time, will be included or made
therein. The Company agrees that it will not, without your written
agreement, file a Rule 462(b) Registration Statement.
(ii) The Company has filed a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-1
under the Act, including a basic prospectus, for registration under
the Act of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, including a Preliminary
Final Prospectus, each of which has previously been furnished to you
and the Selling Stockholder. The Company will next file with the
Commission either (x) a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y)
prior to the effectiveness of such registration statement, an
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amendment to such registration statement, including the form of final
prospectus supplement. In the case of clause (x), the Company has
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities and the offering thereof. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you and the
Selling Stockholder, prior to the Execution Time, will be included or
made therein. The Company agrees that it will not, without your
written agreement, file a Rule 462(b) Registration Statement.
(iii) on the Effective Date, the Registration Statement did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the
Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; on the Effective Date, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements
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therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplements thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Final Prospectus (or any supplement
thereto).
(iv) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date" shall
mean each date that the Registration Statement, any post-effective
amendment or amendments thereto and any Rule 462(b) Registration
Statement became or become effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus referred
to in paragraphs (a)(i) and (a)(ii) above contained in the
Registration Statement at the Effective Date including, in the case of
a Non-Delayed Offering, any Preliminary Final Prospectus, "Preliminary
Final Prospectus" shall mean any preliminary prospectus supplement to
the Basic Prospectus which describes the Securities and the offering
thereof and is used prior to the filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in subparagraphs
(a)(i) and (a)(ii) above, including exhibits and financial statements,
as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as
so amended or such
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Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to he included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424"
"Rule 430A", "Rule 462" and "Regulation S-K" refer to such rules or
regulations under the Act. "Rule 430A Information" meant information
with respect to the Securities and the offering thereof permitted to
be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. "Rule 462(b) Registration Statement" shall mean
a registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the offering covered by the initial
registration statement (the file number of which is set forth in
Schedule I hereto), A "Non-Delayed Offering" shall mean an offering of
securities which is intended to commence promptly after the effective
date of a registration statement, with the result that, pursuant to
Rules 415 and 430A, all information (other than Rule 430A information)
with respect to the securities so offered must be included in such
registration statement at the effective date thereof. A "Delayed
offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement
at the effective date thereof with respect to the securities so
offered. Whether the offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
Any certificate signed by an officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
(b) The Selling Stockholder represents and warrants to,
and agrees with, the Company and each Underwriter that:
(i) The Selling Stockholder it the sole and lawful owner
of the Securities to be sold by the Selling Stockholder hereunder and,
upon sale and
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delivery of, and payment for, such Securities, as provided herein, the
Selling Stockholder will convey good and marketable title to such
Securities, free and clear of all liens, encumbrances, security
interests and claims whatsoever (assuming that the several
Underwriters are without notice of any adverse claim as defined in the
Uniform Commercial Code as adopted in the State of New York (the
"Code") and are otherwise bona fide purchasers for the purposes of the
Code and that such Underwriters' rights are not limited by subsection
(4) of Section 8-302 of the Code).
(ii) Although the Selling Stockholders assume no
responsibility for the accuracy, completeness and fairness of the
Company's representations and warranties in this Section 1 or, except
as contemplated herein, the statements contained in the Registration
Statement, the Basic Prospectus and the Final Prospectus, no fact has
come to the attention of the Selling Stockholder that has caused it to
believe that the representations and warranties of the Company
contained in subparagraph (a)(iii) of this Section 1 (other than the
first clause of such paragraph, with respect to which the Selling
Stockholder makes no representation or warranty) are not true and
correct; and the sale of the Securities by the Selling Stockholder
pursuant hereto is not prompted by any material fact concerning the
Company or any of its subsidiaries which is not set forth in the Final
Prospectus or any supplement thereto. Notwithstanding the foregoing,
with respect to UTSC, (i) such representations and warranties are
limited to the knowledge of Mr, Tadakaro, and (ii) it in acknowledged
and agreed that none of UTSC or any of its respective representatives
or agents participated in any drafting sessions with the Company or
the Underwriters or their legal or financial representatives regarding
the contents of the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus.
(iii) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or
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resale of the Securities and has not affected any sales of shares of
Common Stock which, if effected by the Company, would be required to
be disclosed in response to Item 701 of Regulation S-K.
(iv) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by the Selling Stockholder of the transactions contemplated herein,
except such an may be required under the Act, the federal and
provincial securities laws of Canada or the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and except such other approvals as have
been obtained.
(v) Neither the sale of the Securities being sold by the
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by the Selling Stockholder or the
fulfillment of the terms hereof by the Selling Stockholder 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 Selling
Stockholder or the terms of any indenture or other material agreement
or instrument to which the Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to the Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Selling Stockholder or any
of its subsidiaries.
In respect of any statements in or omissions from the Registration Statement,
the Basic Prospectus or the Final Prospectus or any supplement thereto made in
reliance upon and in conformity with information furnished in writing to the
Company by the Selling Stockholder specifically for use in connection with the
preparation thereof, the Selling Stockholder hereby makes the same
representations and warranties to each Underwriter as the Company makes to such
Underwriter under subparagraph (a)(iii) of this Section 1 [(other than the
first clause of such paragraph, with respect to which the Selling Stockholder
makes no representation or warranty). The Underwriters acknowledge, however,
that (x) the statements set forth in the footnotes to the table under the
heading "Principal and Selling Stockholders", (y) the number of shares being
sold hereunder
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and (z) the biographical information under the heading "Management" in the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus or any amendment or supplement thereto, in each case
solely an such statements relate to the Selling Stockholder or to any director
nominated by the Selling Stockholder in the case of clause (z), constitute the
only information furnished in writing by or an behalf of the Selling
Stockholder for inclusion in the Registration Statement, any Preliminary Final
Prospectus or the Final Prospectus, or any amendments or supplements thereto].
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties herein set
forth, the Selling Stockholder agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Selling
Stockholder, at the purchase price per share set forth an Schedule I hereto,
the amount of the Securities set forth opposite such Underwriter's name in
Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time specified in Schedule I
hereto (or such later date not later than five business days after the
specified date as the Representatives shall designate) which date and time may
be postponed by agreement between the Representatives and the Selling
Stockholder (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 several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Selling Stockholder by wire transfer of immediately available funds to an
account designated by the Selling Stockholder at least one full business day in
advance of the Closing Date. 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 specified in Schedule I hereto. Certificates for
the Securities shall be registered in such names and in such denominations an
the Representatives may request not less than two full business days in advance
of the Closing Date.
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The Company and the Selling Stockholders agree to have the
Securities available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 10:00 AM on the business
day prior to the Closing Date.
The Selling Stockholder will pay all applicable state transfer
taxes, if any, involved in the transfer to the several Underwriters of the
Securities to be purchased by them from the Selling Stockholder and the
respective Underwriters will pay any additional stock transfer taxes involved
in further transfers.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements
(a) The Company agrees with the several Underwriters
that:
(i) The Company will use its beat efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities (which will be deemed to have
occurred on the date that is the earlier of (A) 60 days after the
Closing Date and (B) the date on which the Representatives shall have
informed the Company that the offering of the Securities has
terminated), the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus
or any Preliminary Final Prospectus) to the Basic Prospectus or any
Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment, supplement or Rule 462(b) Registration Statement
to which you reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
and will provide evidence satisfactory to the Representatives of such
timely filing. Upon your request, the Company will
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cause the Rule 462(b) Registration Statement, completed in compliance
with the Act and the applicable rules and regulations thereunder, to
be filed with the Commission pursuant to Rule 462(b) and will provide
evidence satisfactory to the Representatives of such filing. The
Company will promptly advise the Representatives and the Selling
Stockholder (A) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become
effective, (B) when the Final Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission, (C)
when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or
become effective, (D) of any request by the Commission for any
amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or supplement to the Final Prospectus or for
any additional information, (E) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that
purpose and (F) of the receipt 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. The Company will use its best efforts (i)
to prevent the issuance of any such stop order and, (ii) if issued, to
obtain as soon as possible the withdrawal thereof.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (A) prepare and
file with the Commission, subject to the second sentence of
subparagraph (a)(i) of this Section 5, an amendment or supplement
which will correct such statement or
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omission or affect such compliance and (B) supply any supplemented
Final Prospectus to you and the Selling Stockholder in such quantities
as you and the Selling Stockholder may reasonably request.
(iii) An soon practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(iv) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other reproduction by it of all documents relating to the offering.
(v) The Company will pay the fee of the National
Association of Securities Dealers, Inc. in connection with its review
of the offering.
(vi) Until the date set forth on Schedule I hereto, the
Company will not, and will not permit (x) its directors or executive
officers listed in Part I of Schedule TV to, or (y) its executive
officers listed in Part 2 of Schedule IV to, in each case without the
prior written consent of the Representatives, offer, sell or contract
to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any other shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock;
provided, however, that (A) the Company may issue Common Stock
pursuant to any employee or director stock option or compensation plan
of the Company in effect at the Execution Time and (B) the directors
and officers referenced in clauses (x) and (y) may pledge shares of
Common Stock to secure extensions of credit in the ordinary course.
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(b) The Selling Stockholder agrees with the several
Underwriters that, until the date set forth in Schedule I hereto, it will not,
without the prior written consent of the Representatives, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any other shares of Common Stock beneficially owned by such
person, or any securities convertible into, or exchangeable for, shares of
Common Stock.
(c) The Selling Stockholder agrees that it will take all
reasonable actions in cooperation with the Company and the Underwriters to
perform and satisfy all of the Selling Stockholder's conditions precedent.
6. Conditions to the Obligations of the Underwriters,
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company and the Selling Stockholder contained herein as of the Execution Time
and the Closing Date, to the accuracy of the statements of the Company and the
Selling Stockholder made in any certificates pursuant to the provisions hereof,
to the performance by the Company and the Selling Stockholder of their
respective obligations hereunder in all material respects and to the following
additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time on the date of determination of the
public offering price, if such determination occurred at or prior to 3:00 PM
New York City time on such date or (ii) 12:00 Noon on the business day
following the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if filing
of the Final Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or threatened.
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(b) The Company shall have furnished to the
Representatives and the Selling Stockholder the opinion of Xxxxxx X. Xxxxxxxxx,
Esq., counsel to the Company, dated the Closing Date (with respect to
paragraphs (i), (ii), (iii), (iv) and (vi) below), and the opinion of Bartlit
Xxxx Xxxxxx Xxxxxxxxx & Xxxxx, counsel for the Company, dated the Closing Date
(with respect to paragraphs (v), (vii), (viii) and (ix) below), to the effect
that:
(i) each of the Company and the subsidiaries of the
Company listed on Schedule III 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 all
requisite corporate power and authority to own its properties and
conduct its business as described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which require such
qualification wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock of 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 Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either 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 Prospectus; the capital stock of the Company
conforms to the description thereof contained in the Final Prospectus;
the outstanding shares of Common Stock (including the Securities being
sold hereunder have been duly and validly authorized and issued and
are fully paid and nonassessable; the Securities being sold hereunder
by the Selling Stockholder have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters as
contemplated by this Agreement, will be validly issued, fully paid and
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nonassessable; the Securities being sold by the Selling Stockholder
are duly listed for quotation on the Nasdaq National Market; the
certificates for the Securities are in valid form; and the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities, except as
described in the Final Prospectus;
(iv) to the best knowledge of such counsel, 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 or any of its subsidiaries of a character
required to be disclosed in the Registration Statement which is not
disclosed in the Final Prospectus and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included in the Final Prospectus describing any legal
proceedings or material contracts or agreements relating to the
Company fairly summarize such matters;
(v) the Registration Statement has become effective under
the Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel after due inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and
the Registration Statement and the Final Prospectus (other than the
financial statements and other financial information contained therein
as to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act and
the rules thereunder;
(vi) the execution and delivery of this Agreement have
been duly authorized by all requisite corporate action an the part of
the Company; and this Agreement have been duly executed and delivered
by the Company;
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(vii) no consent, approval, authorization or order of any
court or governmental agency or body is required in connection with
the execution and delivery by the Company of this Agreement or the
consummation by the Company of the transactions contemplated by this
Agreement, except such as may be required under the Act or the
Exchange Act and such other approvals (specified in such opinion) as
have been obtained;
(viii) the issuance, offering and sale of the securities
pursuant to this Agreement, compliance by the Company with the other
provisions of this Agreement and consummation by the Company of the
other transactions contemplated by this Agreement will not conflict
with, result in a breach or violation of or constitute a default (with
the passage of time or the giving of notice) under or violate (A) any
of the terms, conditions or provisions of the charter or bylaws of the
Company, (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 its
subsidiaries is a party or by which the Company or any of its
subsidiaries 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 of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries; and
(ix) after the sale of the Securities pursuant to this
Agreement, no holders of securities of the Company will have rights to
the registration of such securities under the Registration Statement
except as set forth in the Final Prospectus under the Section
captioned ["Certain Relationships and Related Parties- Registration
Rights".]
In addition, each such counsel shall state that they have
participated in conferences with directors, officers and other representatives
of the Company, representatives of the independent public accountants for the
Company, representatives of the Underwriters and counsel for the Underwriters
at which conferences the contents of the Registration Statement and the Final
Prospectus and
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related matters were discussed, and, although such counsel have not
independently verified and are not passing upon and assume no responsibility
for the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus, no fact has come to the
attention of such counsel that led such counsel to believe that the
Registration Statement, at the Effective Date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements contained therein not misleading
or that the Final Prospectus includes any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel
express no view with respect to the financial statements and related notes, the
financial statement schedule and other financial, statistical and accounting
data included in the Registration Statement or the Final Prospectus).
The foregoing opinions may be subject to such exceptions and
qualifications as are reasonably satisfactory to the Underwriters.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the Closing
Date.
[(c) UTSC shall have furnished to the Representatives the
opinion of its counsel, Debevoise a Xxxxxxxx, and (B) Tremont shall have
furnished to the Representatives the opinion of its counsel, Bartlit Xxxx
Xxxxxx Xxxxxxxxx & Xxxxx, each dated the Closing Date, and each to the effect
that, with respect to each Selling Stockholder represented by each such
counsel]:
(i) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and the Selling Stockholder has
full legal right and authority to sell, transfer and deliver in the
manner provided in this Agreement the Securities being sold by the
Selling Stockholder hereunder;
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(ii) the delivery by the Selling Stockholder to the
several Underwriters of certificates for the Securities being sold
hereunder by such Selling Stockholder against payment therefor as
provided herein, will pass good and marketable title to such
Securities to the several Underwriters, free and clear of all liens,
encumbrances, security interests and claims whatsoever other than any
liens, encumbrances, security interests and claims arising by any
action taken by the Underwriters (assuming that the Underwriters are
without notice of any adverse claim, as defined in the Code, and are
otherwise bona fide purchasers for purposes of the Code and that such
Underwriters, rights are not limited by subsection (4) of Section
8-302 of the Code);
(iii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by the Selling Stockholder of the transactions contemplated herein,
except such as may be required under the Act, the Exchange Act, the
federal and provincial securities laws of Canada or the blue sky laws
of any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters (with respect to which counsel
need express no opinion) and except such other approvals (specified in
such opinion) as have been obtained; and
(iv) the issuance, offering and sale of the securities
pursuant to this Agreement, compliance by the Selling Stockholder with
the other provisions of this Agreement, and the consummation of the
other transactions contemplated by this Agreement will not 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 Selling Stockholder, (B) any judgment, order,
decree or ruling applicable to the Selling Stockholder or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder or any of its subsidiaries, (C) any law or regulation, or
(D) to the best 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 Selling
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Stockholder or any of its subsidiaries is a party or by which it or
any of its subsidiaries is bound.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the United States or, as
applicable, the Business Corporation Law of the State of New York or the
General Corporation Law of the State of Delaware, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Selling Stockholder and
public officials.
(d) If the Representatives so request, the
Representatives shall have received from counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Registration Statement, the Final Prospectus
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company and each Selling
Stockholder shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(e) The company shall have furnished to the
Representatives and the Selling Stockholder a certificate of the Company,
signed on behalf of the Company 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 Registration Statement, the Final Prospectus, any supplements to
the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement that are qualified as to materiality are true and
correct and the representations and warranties of the Company that are
not so qualified 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
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to be performed or satisfied at or prior to the Closing Date;
(ii) to the best knowledge of such signer after due
inquiry, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
subsequently dated supplement thereto), 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 in the Final Prospectus
(exclusive of any supplement thereto).
(f) The Selling Stockholder shall have furnished to the
Representatives a certificate, signed by the principal executive, financial or
accounting officer or other authorized representative of the Selling
Stockholder, dated the Closing Date, to the effect that the signers of such
certificate have examined the Registration Statement, the Final Prospectus,
any supplement to the Final Prospectus and this Agreement and that the
representations and warranties of such Selling Stockholder in this Agreement
that are qualified as to materiality are true and correct and the
representations and warranties of the Selling Stockholder that are not so
qualified are true and correct in all material respects on and as of the
Closing Date to the same effect as if made on the Closing Date.
(g) At the Closing Date, Coopers & Xxxxxxx, L.L.P. shall
have furnished to the Representatives a letter or letters which may refer to
letters previously delivered to one or more of the Representatives, dated as of
the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the applicable published rules and regulations
thereunder and Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants ("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,
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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 Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their review in accordance with standards established by
the AICPA of the unaudited interim financial information included in
the Registration Statement and the Final Prospectus; carrying out
certain specified procedures 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) the unaudited interim consolidated financial
statements included in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act
and with the published rules and regulations of the Commission
with respect to registration statements on Form S-1; and said
unaudited interim financial statements are not in conformity
with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited
financial statements included in the Registration Statement
and the Final Prospectus;
(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
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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 Registration
Statement and the Final Prospectus, 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) EBITDA or per share amounts
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; and
(3) the information included in the Registration
Statement and Final Prospectus in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 302 (Supplementary
Financial Information) and Item 402 (Executive Compensation)
is not in conformity with the applicable disclosure
requirements of Regulation S-K; and
(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 Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (g) and
in paragraphs (h) and (i) below include any supplement thereto at the date of
the letter.
(h) At the Closing Date, KPMG Peat Marwick LLP shall have
furnished to the Representatives a letter or letters, dated as of the Cloning
Date, in form and substance
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satisfactory to the Representatives, confirming that, with respect to IMI plc
and its subsidiaries, they are independent accountants within the meaning of
the Act and the Exchange Act and the applicable published rules and regulations
thereunder and Rule 101 of the Code of Professional Conduct of the AICPA and
stating in affect that!
(i) in their opinion the audited financial statements of
the IMI Titanium Business (as defined in the Registration Statement)
included in the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations; 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 Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
(i) At the Closing Date, Price Waterhouse LLP shall have
furnished to the Representatives a letter or letters, dated at of the Closing
Date, in form and substance satisfactory to the Representatives, confirming
that, with respect to Titanium Hearth Technologies, they are independent
accountants within the meaning of the Act and the Exchange Act and the
applicable published 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 of
Titanium Hearth Technologies included in the Registration Statement
and the Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations; 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 Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement (exclusive
of any amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (g) 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 proceed with the public offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(k) On or prior to the Execution Time, the Company shall
have furnished to the Representatives a letter substantially in the form of
Exhibit D hereto from each officer and director of the Company listed in
Schedule IV hereto and each Selling Stockholder, in each case addressed to the
Representatives, in which each such person agrees not to offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
an offering of, any shares of common Stock beneficially owned by such person or
any securities convertible into, or exchangeable for, shares of Common Stock
(x) in the case of the directors and executive officers listed in Part I of
Schedule IV, for a period set forth on Schedule I or (y) in the case of the
executive officers listed in Part 2 of Schedule IV, for a period set forth on
schedule 1, in each case without the prior written consent of the
Representatives, other than shares of Common Stock (A) disposed of as bona fide
gifts or
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(B) pledged to secure extensions of credit in the ordinary course.
(l) The National Association of Securities Dealers, Inc.
("NASD"), upon review of the terms of the public offering of the Securities,
shall not have objected to the participation by any of the Underwriters in such
offering or asserted any violation of the Conduct Rules of the NASD.
(m) Prior to the Closing Date, the Company and the
Selling Stockholder shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company and
the Selling Stockholder in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Xxxxx, counsel for the
Underwriters, at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the
Closing Date.
7. Reimbursement of Underwriters, Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof (other
than section [6(d)]) 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 Selling Stockholder 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 Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
reasonable out-of-pocket expenses (including reasonable fees and
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25
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities. If the Company is
required to make any payments to the Underwriters under this Section 7 solely
because of the Selling Stockholder's refusal, inability or failure to satisfy
any condition to the obligations of the Underwriters set forth in Section 6(c)
or 6(f), the Selling Stockholder shall reimburse the Company on demand for all
amounts so paid.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in any
amendment thereof, or in the Basic Prospectus, or in any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in 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 therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein
and (ii) with respect to any untrue statement or omission of material fact made
in the Basic Prospectus or in any Preliminary Final Prospectus, the indemnity
agreement contained in this Section 8(a) shall not
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inure to the benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter
occurs under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Final Prospectus to the Representatives,
(x) delivery of the Final Prospectus was required by the Act to be made to such
person, (y) the untrue statement or omission of a material fact contained in
the Basic Prospectus or in any Preliminary Final Prospectus was corrected in
the Final Prospectus and (z) there was not sent or given to such person, at or
prior to the written confirmation of the sale of such securities to such
person, a copy of the Final Prospectus. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) The Company agrees to indemnify and hold harmless the
Selling Stockholder, the directors, officers, employees and agents of the
Selling Stockholder and each person who controls the Selling Stockholder within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus or any Preliminary Final Prospectus or in the Final Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are bated
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as is
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 the Company will not be liable in
any such came 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
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alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Selling Stockholder
specifically for inclusion therein. The Company acknowledges that [(x) the
statements set forth In the footnotes to the table under the heading "Principal
and Selling Stockholders", (y) the number of Shares being sold hereunder and
(a) the biographical information under the heading "Management" in the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
and the Final Prospectus or any amendment or supplement thereto, in each case
solely as such statements relate to the Selling Stockholder or to any director
nominated by the Selling Stockholder in the case of clause (z), constitute the
only information furnished in writing by or on behalf of the Selling
Stockholder for inclusion in the Registration Statement, the Basic Prospectus
or in any Preliminary Final Prospectus or the Final Prospectus, or any
amendment or supplement thereto and the Selling Stockholder confirms that such
statements, to the extent they relate to the Selling Stockholder, are correct.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(c) The Selling Stockholder agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls the Company or any
Underwriter within the meaning of either the Act or the Exchange Act to the
same extent an the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information furnished to the Company by or
on behalf of the Selling Stockholder specifically for inclusion in the
documents referred to in the foregoing indemnity; provided, however, that in no
case shall the liability of the Selling Stockholder under this Section 8(c)
exceed the aggregate public offering price of the Securities sold by the
Selling Stockholder to the Underwriters minus the underwriting discounts or
commissions paid thereon to the Underwriters by the Selling Stockholder. [The
Company and each Underwriter acknowledge that [(x) the statements set forth in
the footnotes to the table under the heading "Principal and Selling
Stockholders", (y) the number of shares being sold hereunder and (z)
biographical information under the heading "Management" in the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus and the Final
Prospectus or any
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amendments or supplements thereto, in each case an such statements related to
the Selling Stockholder, or any director nominated by the Selling Stockholder
in the case of clause (z), constitute the only information furnished in writing
by or on behalf of the Selling Stockholder for inclusion in the Registration
Statement, the Basic Prospectus or any Preliminary Final Prospectus or the
Final Prospectus, or any amendments or supplements thereto and the Selling
Stockholder confirms that such statements, to the extent they relate to the
Selling Stockholder, are correct.] This indemnity agreement will be in addition
to any liability which the Selling Stockholder may otherwise have.
(d) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and the
Selling Stockholder and each person who controls the Selling Stockholder within
the meaning of either-the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company and each Selling Stockholder
acknowledge that the names of the Underwriters and the statements set forth in
Schedule I constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the Basic Prospectus, or any
Preliminary Final Prospectus or the Final Prospectus, and you, as the
Representatives, confirm that such statements are correct.
(e) 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),
(b), (c) or (d) 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
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not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b), (c) or (d) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, all indemnified
parties shall have the right to employ one separate counsel (and, in addition,
one local counsel in any relevant jurisdiction for all indemnified parties) in
any such action, 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 reasonably 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
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settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding and (ii) does not include a statement as to or an admission of
culpability or a failure to act, by or on behalf of any indemnified party.
(f) In the event that the indemnity provided in paragraph
(a), (b), (c) or (d) of this section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company, the Selling
Stockholder and the Underwriters 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 Selling Stockholder and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company, by the Selling Stockholder and by
the Underwriters from the offering of the Securities; provided, however, that
in no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder and in no case shall
the Selling Stockholder be responsible for any amount in excess of the
aggregate amount of proceeds the Selling Stockholder received from the sale of
the Securities pursuant to the offering. if the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company, the
Selling Stockholder and the Underwriters shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company, of the Selling Stockholder and of the Underwriters 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 and by the Selling Stockholder shall be deemed to be equal to the total
net proceeds from the offering of the Securities (before deducting expenses)
received by each of them, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission related to
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information provided by the Company, the Selling Stockholder or the
Underwriters. The Company, the Selling Stockholder and the Underwriters agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (f), no person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, each person who controls the
Selling Stockholder within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of the Selling Stockholder shall
have the same rights to contribution as the Selling Stockholder, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of thin paragraph (f).
9. Default by an Underwriter, if any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of securities set forth opposite their names in Schedule 11 hereto bears
to the aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the
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Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter, the Selling Stockholder or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall reasonably determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in thin Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company, the Selling Stockholder and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject 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 the Company's Common Stock shall have been suspended
by the Commission or the Nasdaq National Market or trading in securities
generally an the Nasdaq National Market or the New York Stock Exchange shall
have been suspended or limited (other than pursuant to the circuit breaker
rules) or minimum prices shall have been established on such Exchange, (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 Staten 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 Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers, of the Selling Stockholder and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, the Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities, The provisions of Sections
7, 8 and 15 hereof shall survive the termination or cancellation of this
Agreement.
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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, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, XX 00000,
attention of the legal department; or if sent to the Selling Stockholder, will
be mailed, delivered or telegraphed and confirmed to it at the address set
forth in Schedule V hereto.
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 no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH XXX XXXX XX XXX XXXXX XX XXX XXXX.
[15. Jurisdiction: Appointment of Agent fox Service of Process.
Each Selling Stockholder his appointed CT Corporation, New York, New York, as
its authorized agent (the "Authorized Agent") upon whom process may be served
in any legal suit, action or proceeding arising out of or based upon this
Agreement or the transactions contemplated hereby which may be instituted in
any State or Federal court sitting in The City of New York and any appellate
court from any thereof, by any person and expressly accepts the nonexclusive
jurisdiction of any such court in respect of any such action. Such appointment
shall he irrevocable. Each Selling Stockholder hereby represents and warrants
that the Authorized Agent has agreed to act as said agent for service of
process, and each Selling Stockholder agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to each Selling Stockholder shall be deemed, in every respect, effective
service of process upon each Selling Stockholder].
16. Counterparts. This Agreement nay be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
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If the foregoing in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Selling Stockholder and the several Underwriters.
Very truly yours,
TITANIUM METALS CORPORATION,
By:
------------------------
Name:
Title:
UNION TITANIUM SPONGE CORPORATION,
By:
------------------------
Name:
Title:
TREMONT CORPORATION,
By:
-------------------------
Name:
Title:
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The foregoing Agreement is hereby confirmed and accepted an
of the date specified in Schedule I hereto.
By:
-------------------------
Name:
Title:
For themselves and the several Underwriters, if any, named in Schedule II to
the foregoing Agreement.
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SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 333-
Representative (s):
Amount and Purchase Price of Securities:
Number of shares:
Purchase price per share:
Closing Date, Time and Location: , 1997, 10:00 AM New York City time, at the
-----
offices of Cravath, Swaine & Xxxxx, worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx
Xxxx, XX
Type of offering:
Date referred in Sections 5(a)(vi) and S(b) after which the Company and certain
of its officers and directors and the Selling Stockholder may offer or sell
additional Common Stock or securities convertible into, or exchangeable for,
shares of Common Stock without the consent of the Representative: , 1997.
Modification of items to be covered by the letters from Coopers & Xxxxxxx
L.L.P., KPMG Peat Markwick LLP and Price Waterhouse LLP delivered pursuant to
Sections 5(g), (h) and (i) at the Execution Time: None.
Information provided by Underwriters:
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SCHEDULE II
Number of Shares
Underwriter to be purchased
Total . . . . . . . . .
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SCHEDULE III
% of the
Company's
Jurisdiction of Voting
Incorporation or Securities
Name of Subsidiary Organization Held
----------------- ---------------- ----------
TIMET Xxxxxx, X.X. France 70
Titanium Hearth
Technologies, Inc. Delaware 100
TIMET Hearth Melting
Corporation Colorado 100
Titanium Hearth
Technologies, G.P. Pennsylvania 100
TIMET UK Limited United Kingdom 100
TIMET Castings Corporation Oregon 100
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SCHEDULE IV
Part 1
Directors and Executive Officers of the Company
Subject to Lock-Up Specified in Schedule I
X. Xxxxxx Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxxxx
Part 2
Executive Officers of the Company
Subject to Lock-Up specified in Schedule I
Xxxx X. Xxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxx
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SCHEDULE V
Addresses of Selling Stockholders
Tremont Corporation
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Union Titanium Sponge Corporation
c/o Toho Titanium Company Ltd.
0-00-00 Xxxxxx
Xxxxxx-xx
Xxxxx 000, Xxxxx