Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No. 2 to Form S-1 82 439K
2: EX-1.1 Form of Underwriting Agreement 27 81K
3: EX-4.1 Form of Indenture 112 317K
4: EX-4.2 Form of Supplemental Indenture 2 14K
5: EX-5.1 Opinion of Cadwalader, Wickersham & Taft 2 9K
12: EX-10.11 Form of Amend. #2 to Am. & Res. L&Sa - Sabel 13 48K
6: EX-10.3A Form of Amendment to Nw Apprec. Agr. - Legge 2 12K
9: EX-10.3A Form of Amendment to Nw Apprec. Agr. - Ogaard 2 12K
7: EX-10.3A Form of Amendment to Nw Apprec. Agr. - Thayer 2 12K
8: EX-10.3C Form of Amendment to Nw Apprec. Agr. - Brown 2 12K
10: EX-10.3E Form of Amendment to Nw Apprec. Agr. - Kaplan 2 12K
11: EX-10.8 Form of Amend. #2 to Am. & Res. L&Sa - Magnesium 12 44K
13: EX-23.2 Consent of Kpmg Peat Marwick 1 7K
14: EX-25.1 Form T-1 53 389K
EX-1.1 — Form of Underwriting Agreement
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$150,000,000
RENCO METALS, INC.
____% Senior Notes due 2003
UNDERWRITING AGREEMENT
__________, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Renco Metals, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $150,000,000 aggregate principal amount of its ____%
Senior Notes due 2003 (the "Notes") to Donaldson, Lufkin & Jenrette Securities
Corporation (the "Underwriter"). The obligations of the Company under the
Indenture (as defined below) and the Notes will be unconditionally guaranteed
(the "Guarantees"), jointly and severally, on a senior unsecured basis, by the
Company's subsidiaries, Magnesium Corporation of America, a Delaware corporation
("MagCorp"), and Sabel Industries, Inc., an Alabama corporation ("Sabel"). The
Notes and the Guarantees are to be issued pursuant to the provisions of an
Indenture to be dated as of __________ __, 1996 (the "Indenture") by and among
the Company, MagCorp, Sabel and Fleet National Bank, as trustee (the "Trustee").
MagCorp and Sabel are hereinafter referred to individually as a "Subsidiary
Guarantor" and collectively as the "Subsidiary Guarantors." The Company and the
Subsidiary Guarantors are hereinafter referred to collectively as the "Issuers."
The Notes and the Guarantees are hereinafter referred to collectively as the
"Securities."
On May 24, 1996, an offer (the "Offer") was commenced by the
Company to purchase for cash up to all (but not less than a majority in
principal amount outstanding) of the Company's outstanding 12% Senior Notes due
2000 (the "Existing Notes") and a related solicitation (the "Consent
Solicitation") of consents to modify certain terms of the indenture governing
the Existing Notes (the "Existing Notes Indenture"). Upon receipt of the
Requisite
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Consents (as such term is defined in the Offer to Purchase and Consent
Solicitation Statement, dated May 24, 1996 (the "Statement")), the Company, the
Subsidiary Guarantors and Fleet National Bank, as trustee, will execute a
supplemental indenture (the "Supplemental Indenture"), giving effect to the
proposed amendments to the Existing Notes Indenture. Fleet National Bank acted
as depositary (the "Depositary") in connection with the Offer and the Consent
Solicitation.
1. Registration Statement and Prospectus. The Issuers have
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively called the "Act"), a registration statement on Form S-1 including
a prospectus relating to the Securities, which may be amended. The registration
statement as amended at the time when it becomes effective, including a
registration statement (if any) filed pursuant to Rule 462(b) under the Act
increasing the size of the offering registered under the Act and information (if
any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, is hereinafter referred to as
the "Registration Statement"; and the prospectus in the form first used to
confirm sales of Securities is hereinafter referred as the "Prospectus."
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and the Underwriter
agrees to purchase from the Company, $150,000,000 aggregate principal amount of
the Notes, at 97% of the principal amount thereof (the "Purchase Price") plus
accrued interest thereon, if any, from __________ __, 1996 to the date of
payment and delivery.
3. Terms of Public Offering. The Issuers are advised by you
that you propose (i) to make a public offering of the Securities as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Securities upon the terms set forth in
the Prospectus.
4. Delivery and Payment. Delivery to the Underwriter of and
payment for the Securities shall be made at 10:00 A.M., New York City time, on
the third or fourth business day unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (the "Closing Date"), following the date of the initial public
offering, at such place as you shall designate. The
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Closing Date and the location of delivery of and the form of payment for the
Securities may be varied by agreement between you and the Company.
Certificates for the Securities shall be registered in such
names and issued in such denominations as you shall request in writing not later
than two full business days prior to the Closing Date. Such certificates shall
be made available to you for inspection not later than 9:30 A.M., New York City
time, on the business day next preceding the Closing Date. Certificates in
definitive form evidencing the Securities shall be delivered to you on the
Closing Date with any transfer taxes thereon duly paid by the Company, for the
account of the Underwriter, against payment of the Purchase Price therefor by
wire transfer in Federal funds to the Company.
5. Agreements of the Issuers. The Issuers, jointly and
severally, covenant and agree with you:
(a) To use their best efforts to cause the Registration
Statement to become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment to it becomes
effective, (ii) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus
or for additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for such purposes, and (iv) of the happening of any event
during the period referred to in paragraph (e) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to
make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Issuers will make every reasonable
effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) To furnish to you, without charge, two signed copies of
the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits, and to furnish to you
such number of conformed
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copies of the Registration Statement as so filed and of each amendment
to it, without exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it
becomes effective, or to make any amendment or supplement to the
Prospectus of which you shall not previously have been advised or to
which you shall reasonably object; and to prepare and file with the
Commission, promptly upon your reasonable request, any amendment to the
Registration Statement or supplement to the Prospectus which may be
necessary or advisable in connection with the distribution of the
Securities by you, and to use its best efforts to cause the same to
become promptly effective.
(e) Promptly after the Registration Statement becomes
effective, and from time to time thereafter for such period as in the
opinion of counsel for the Underwriter a prospectus is required by law
to be delivered in connection with sales by the Underwriter or any
dealer, to furnish to the Underwriter and any dealer as many copies of
the Prospectus (and of any amendment or supplement to the Prospectus)
as the Underwriter or any dealer may reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriter it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
to comply with any law, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented,
will not in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with law, and to
furnish to the Underwriter and to such dealers as you shall specify,
such number of copies thereof as the Underwriter or any dealers may
reasonably request.
(g) Prior to any public offering of the Securities, to
cooperate with you and counsel for the Underwriter in connection with
the registration or qualification of the Securities for offer and sale
by the Underwriter and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request, to continue such
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qualification in effect so long as required for distribution of the
Securities and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification.
(h) To mail and make generally available to its security
holders as soon as reasonably practicable an earnings statement
covering a period of at least twelve months after the effective date of
the Registration Statement (but in no event commencing later than 90
days after such date) which shall satisfy the provisions of Section
11(a) of the Act, and to advise you in writing when such statement has
been so made available.
(i) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end
of each fiscal year to the record holders of its Securities a financial
report of the Company and its subsidiaries on a consolidated basis (and
a similar financial report of all unconsolidated subsidiaries, if any),
all such financial reports to include a consolidated balance sheet, a
consolidated statement of operations, a consolidated statement of cash
flows and a consolidated statement of shareholders' equity as of the
end of and for such fiscal year, together with comparable information
as of the end of and for the preceding year, certified by independent
certified public accountants, and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period
(except for the last quarterly period of each fiscal year) to such
holders, a consolidated balance sheet, a consolidated statement of
operations and a consolidated statement of cash flows (and similar
financial reports of all unconsolidated subsidiaries, if any) as of the
end of and for such period, and for the period from the beginning of
such year to the close of such quarterly period, together with
comparable information for the corresponding periods of the preceding
year.
(j) During the period referred to in paragraph (i), to furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the security holders of
the Company or filed with the Commission and such other publicly
available information concerning the Company and its subsidiaries as
you may reasonably request.
(k) Notwithstanding the termination of this Agreement
(pursuant to Section 9 hereof, or otherwise), to pay all
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costs, expenses, fees and taxes incident to the performance by the
Issuers of their respective obligations hereunder, and shall promptly
pay upon demand all fees and disbursements of counsel for the
Underwriter, whether or not the transactions contemplated herein are
consummated, including, but not limited to, all costs, expenses, fees
and taxes incident to: (i) the preparation, printing, filing and
distribution under the Act of the Registration Statement (including
financial statements and exhibits), each preliminary prospectus and all
amendments and supplements to any of them prior to or during the period
specified in paragraph (e), (ii) the printing and delivery of the
Prospectus and all amendments or supplements to it during the period
specified in paragraph (e), (iii) the printing and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents printed
and delivered in connection with the offering of the Securities
(including in each case any disbursements of counsel for the
Underwriter relating to such printing and delivery), (iv) the
registration or qualification of the Securities for offer and sale
under the securities or Blue Sky laws of the several states (including
in each case the fees and disbursements of counsel for the Underwriter
relating to such registration or qualification and memoranda relating
thereto), (v) filings and clearance with the National Association of
Securities Dealers, Inc. in connection with the offering, (vi)
furnishing such copies of the Registration Statement, the Prospectus
and all amendments and supplements thereto as may be requested for use
in connection with the offering or sale of the Securities by the
Underwriter or by dealers to whom Securities may be sold, (vii) the
transportation and other expenses incurred by or on behalf of Company,
MagCorp or Sabel representatives in connection with presentations to
prospective purchasers of the Securities, (viii) fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Issuers, (ix) fees and
expenses of the Trustee including fees and expenses of its counsel and
(x) any fees charged by investment rating agencies for the rating of
the Securities.
(l) To apply the net proceeds from the sale of the Securities
as set forth in the Prospectus under the caption "Use of Proceeds."
(m) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt
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securities of the Company substantially similar to the Securities
(other than (i) the Securities and (ii) commercial paper issued in the
ordinary course of business), without your prior written consent.
(n) To use their best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by
the Issuers prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Securities.
6. Representations and Warranties of the Issuers. The Issuers,
jointly and severally, represent and warrant to and agree with the Underwriter
that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each part of the Registration Statement, when such
part became effective, did not contain and each such part, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Act and (iii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph (b)
do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to the Underwriter
furnished to the Company in writing by the Underwriter expressly for
use therein.
(c) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, and each
Registration Statement filed pursuant to Rule 462(b) under the Act, if
any, complied when so filed in all material respects with the Act; and
did not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
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statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) Each Issuer has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority
to carry on its business as it is currently being conducted and to own,
lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(e) As of the date hereof, the Company has no subsidiaries
other than the Subsidiary Guarantors. All of the outstanding shares of
capital stock of, or other ownership interests in, each of the
Company's subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable, and are owned by the Company, free
and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(f) The Company has taken all necessary corporate action to
authorize the issuance of the Notes and each Subsidiary Guarantor has
taken all necessary corporate action to authorize the issuance of its
respective Guarantee. The Notes have been duly authorized by the
Company, and each Subsidiary Guarantor has duly authorized its
respective Guarantee, and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to the
Underwriter against payment therefor as provided by this Agreement,
will be entitled to the benefits of the Indenture, and will be valid
and binding obligations of the Company in the case of the Notes and
each Subsidiary Guarantor in the case of its respective Guarantee,
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(g) Each Issuer has all the necessary corporate power and
authority to execute and deliver this Agreement, to perform its
respective obligations hereunder and to consummate the transactions
contemplated hereby and by the Prospectus.
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This Agreement has been duly authorized, executed and delivered by each
Issuer and is a valid and binding agreement of each Issuer enforceable
in accordance with its terms (except as rights to indemnity and
contribution hereunder may be limited by applicable law).
(h) Each Issuer has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture. The Indenture has been duly qualified under, and complies
with, the Trust Indenture Act of 1939, as amended (the "TIA"), and has
been duly authorized by each Issuer and, when executed and delivered by
the Issuers (assuming the due authorization, execution and delivery by
the Trustee), will constitute a valid and binding agreement of each
Issuer, enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability. The Depositary has
received validly tendered and not withdrawn consents from holders of at
least a majority of the aggregate principal amount of Existing Notes
outstanding pursuant to the Consent Solicitation. Each of the Issuers
has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Supplemental Indenture. The
Supplemental Indenture has been duly authorized by each of the Issuers
and, when executed and delivered by the Issuers (assuming the due
authorization, execution and delivery by the Trustee), will constitute
a valid and binding agreement of each Issuer, enforceable in accordance
with its terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. Upon the effectiveness of the Supplemental Indenture,
the Existing Notes Indenture, as supplemented by the Supplemental
Indenture, will comply with the TIA.
(i) The Securities conform as to legal matters to the
descriptions thereof contained in the Prospectus.
(j) None of the Issuers is in violation of its respective
charter or by-laws or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any other agreement, indenture or
instrument material to
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the conduct of the business of the Company and its subsidiaries, taken
as a whole, to which such Issuer is a party or by which such Issuer or
its respective property is bound.
(k) The execution, delivery and performance of this Agreement,
the Indenture, the Supplemental Indenture and the Securities and
compliance by the Issuers with all the provisions hereof and thereof
and the consummation of the transactions contemplated hereby, thereby
and by the Prospectus will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be
required under the securities or Blue Sky laws of the various states)
and will not conflict with or constitute a breach of any of the terms
or provisions of, or a default under, the charter or by-laws of any of
the Issuers or any agreement, indenture or other instrument to which
any of the Issuers is a party or by which any of the Issuers or their
respective property is bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees applicable to
any of the Issuers or their respective property.
(l) Except as otherwise set forth in the Prospectus, there are
no material legal or governmental proceedings pending to which any of
the Issuers is a party or of which any of their respective property is
the subject, and, to the best of the Issuers' knowledge, no such
proceedings are threatened or contemplated. No contract or document of
a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration
Statement is not so described or filed as required.
(m) Except as described in the Prospectus, none of the Issuers
has violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in
any material adverse change in the business, prospects, financial
condition or results of operation of the Company and its subsidiaries,
taken as a whole.
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(n) The Issuers have such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable Environmental Laws,
as are necessary to own, lease and operate its respective properties
and to conduct its business; the Issuers have fulfilled and performed
all of their material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such permit;
and, except as described in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Issuers.
(o) In the ordinary course of its business, each of the
Company and the Subsidiary Guarantors conducts a periodic review of the
effect of Environmental Laws on its respective business, operations and
properties, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Issuers have reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(p) Except as otherwise set forth in the Prospectus or such as
are not material to the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole, the Issuers have good and marketable title, free and clear of
all liens, claims, encumbrances and restrictions except liens for taxes
not yet due and payable, to all property and assets described in the
Registration Statement as being owned by them. All leases to which any
Issuer is a party are valid and binding and no default has occurred or
is continuing thereunder, which might result in any material adverse
change in the business, prospects, financial condition or results of
operation of the Company and its subsidiaries taken as a whole, and the
Issuers enjoy peaceful and undisturbed possession under all such leases
to which any of them is a party as lessee with such exceptions as do
not materially interfere with the use made by such Issuer.
(q) The Issuers maintain reasonably adequate insurance.
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(r) KPMG Peat Marwick LLP are independent public accountants
with respect to the Issuers as required by the Act.
(s) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis
stated in the Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial
information set forth in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) is, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company. The
statistical and market-related data included in the Registration
Statement and the Prospectus (and any amendment or supplement thereto)
are based on or derived from sources which the Issuers believe to be
reliable and accurate.
(t) None of the Issuers is an "investment company" or a
company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(u) No holder of any security of the Company or either
Subsidiary Guarantor has any right to require registration of any
security of the Company or either Subsidiary Guarantor. There are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of
the capital stock of, or other ownership interest in, the Company or
either Subsidiary Guarantor, except as otherwise disclosed in the
Registration Statement and Prospectus.
(v) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
(w) The Company and each Subsidiary Guarantor maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific
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authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(x) All material tax returns required to be filed by the
Company and each Subsidiary Guarantor in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any Subsidiary
Guarantor have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(y) There is (i) no significant unfair labor practice
complaint pending against any of the Issuers or, to the best knowledge
of the Issuers, threatened against any of them, before the National
Labor Relations Board or any state or local labor relations board, and
no significant grievance or more significant arbitration proceeding
arising out of or under any collective bargaining agreement is so
pending against any of the Issuers or, to the best knowledge of the
Issuers, threatened against any of them, and (ii) no significant
strike, labor dispute, slowdown or stoppage pending against any of the
Issuers or, to the best knowledge of the Issuers, threatened against
any of them except for such actions specified in clause (i) or (ii)
above, which, singly or in the aggregate could not reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
7. Indemnification. (a) Each Issuer, jointly and severally,
agrees to indemnify and hold harmless the Underwriter and each person, if any,
who controls the Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), from and against any and all losses, claims, damages, liabilities and
judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Underwriter furnished in writing to the Issuers by
or on behalf of the Underwriter expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriter from whom the
person asserting any such losses, claims, damages and liabilities and judgments
purchased Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Issuers shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Securities
to such person, and if the Prospectus (as so amended and supplemented) would
have cured the defect giving rise to such loss, claim, damage, liability or
judgment.
(b) In case any action shall be brought against the
Underwriter or any person controlling the Underwriter, based upon any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereto and with respect to which indemnity may be
sought against the Issuers, the Underwriter shall promptly notify the Issuers in
writing and the Issuers shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses. The Underwriter or any such controlling person
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Underwriter or such controlling person unless (i)
the employment of such counsel shall have been specifically authorized in
writing by the Issuers, (ii) the Issuers shall have failed to assume the defense
and employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both the Underwriter or such controlling person and
the Issuers and the Underwriter or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the Issuers
(in which case the Issuers shall not have the right to assume the defense of
such action on behalf of the Underwriter or such controlling person, it being
understood, however, that the Issuers shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
-15-
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for the Underwriter and all
such controlling persons, which firm shall be designated in writing by the
Underwriter and that all such fees and expenses shall be reimbursed as they are
incurred). No Issuer shall be liable for any settlement of any such action
effected without its written consent but if settled with the written consent of
such Issuer, such Issuer agrees to indemnify and hold harmless the Underwriter
and any such controlling person from and against any loss or liability by reason
of such settlement. Notwithstanding the immediately preceding sentence, if in
any case where the fees and expenses of counsel are at the expense of the
indemnifying party and an indemnified party shall have requested the
indemnifying party to reimburse the indemnified party for such fees and expenses
of counsel as incurred, such indemnifying party agrees that it shall be liable
for any settlement of any action effected without its written consent if (i)
such settlement is entered into more than ten business days after the receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall have failed to reimburse the indemnified party in accordance with
such request for reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(c) The Underwriter agrees to indemnify and hold harmless the
Issuers, their respective directors, their respective officers who sign the
Registration Statement and any person controlling any Issuer within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Issuers to the Underwriter but only with
reference to information relating to the Underwriter furnished in writing by or
on behalf of the Underwriter expressly for use in the Registration Statement,
the Prospectus or any preliminary prospectus. In case any action shall be
brought against any Issuer, any of its directors, any of its officers or any
person controlling such Issuer based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of which indemnity may
be sought against the Underwriter, the Underwriter shall have the rights and
duties given to such Issuer (except that if such Issuer shall have assumed the
defense thereof, the Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees
-16-
and expenses of such counsel shall be at the expense of the Underwriter), and
such Issuer, its directors, any of its officers and any person controlling such
Issuer shall have the rights and duties given to the Underwriter, by Section
7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuers on the one hand and the
Underwriter on the other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuers and
the Underwriter in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Issuers
and the Underwriter shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Issuers, and the total underwriting discounts and commissions received by the
Underwriter, bear to the total price to the public of the Securities, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault of the Issuers and the Underwriter shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
any Issuer or the Underwriter and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Issuers and the Underwriter agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, the
-17-
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Conditions of Underwriter's Obligations. The obligations of
the Underwriter to purchase the Securities under this Agreement are subject to
the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Issuers
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date.
(b) The Registration Statement shall have become effective not
later than 5:00 P.M. (and in the case of a Registration Statement filed
under Rule 462(b) of the Act, not later than 10:00 p.m.), New York City
time, on the date of this Agreement or at such later date and time as
you may approve in writing, and at the Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does
not indicate the direction of the possible change, in the rating
accorded any of the Issuers' securities by any "nationally recognized
statistical rating organization", as such term is defined for purposes
of Rule 436(g)(2) under the Act.
(d)(i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have
been any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, affairs or business prospects, whether
or not arising in the
-18-
ordinary course of business, of the Company or either Subsidiary
Guarantor, (ii) since the date of the latest balance sheet included in
the Registration Statement and the Prospectus there shall not have been
any change, or any development involving a prospective material adverse
change, in the capital stock or in the long-term debt of the Company or
either Subsidiary Guarantor from that set forth in the Registration
Statement and Prospectus, (iii) the Company and the Subsidiary
Guarantors shall have no liability or obligation, direct or contingent,
which is material to the Company and its subsidiaries, taken as a
whole, other than those reflected in the Registration Statement and the
Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by _______________ and
_______________, in their capacities as the _______________ and
_______________ of the Company and each Subsidiary Guarantor,
confirming the matters set forth in paragraphs (a), (b), (c) and (d) of
this Section 8.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriter), dated the
Closing Date, of Cadwalader, Wickersham & Taft, counsel for the Company
and the Subsidiary Guarantors, to the effect that:
(i) each Issuer has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the
corporate power and authority required to carry on its
business as it is currently being conducted and to own, lease
and operate its properties;
(ii) each Issuer is duly qualified and is in good
standing as a foreign corporation authorized to do business in
each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) as of the date hereof, the Company has no
subsidiaries other than the Subsidiary Guarantors; all of the
outstanding shares of capital stock of, or other ownership
interests in, each of the Company's subsidiaries have been
duly and validly authorized and issued and are fully paid and
non-assessable, and are owned by the Company, free and clear
of any security
-19-
interest, claim, lien, encumbrance or adverse interest of
any nature;
(iv) the Company has taken all necessary corporate
action to authorize the issuance of the Notes and each
Subsidiary Guarantor has taken all necessary corporate action
to authorize the issuance of its respective Guarantee; the
Notes have been duly authorized by the Company, and each
Subsidiary Guarantor has duly authorized its respective
Guarantee, and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid
for by the Underwriter in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company in
the case of the Notes and each Subsidiary Guarantor in the
case of its respective Guarantee, enforceable in accordance
with their terms except as (a) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and
the availability of equitable remedies may be limited by
equitable principles of general applicability;
(v) each Issuer has all the necessary corporate
power and authority to execute and deliver this Agreement, to
perform its respective obligations hereunder and to consummate
the transactions contemplated hereby and by the Prospectus;
this Agreement has been duly authorized, executed and
delivered by each Issuer and is a valid and binding agreement
of each Issuer enforceable in accordance with its terms
(except as rights to indemnity and contribution hereunder may
be limited by applicable law);
(vi) each Issuer has all requisite corporate power
and authority to execute, deliver and perform its obligations
under the Indenture; the Indenture has been duly qualified
under the TIA and has been duly authorized by each Issuer and
when executed and delivered by the Issuers (assuming the due
authorization, execution and delivery by the Trustee), will
constitute a valid and binding agreement of each Issuer,
enforceable in accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by
-20-
equitable principles of general applicability; each of the
Issuers has all requisite corporate power and authority to
execute, deliver and perform its obligations under the
Supplemental Indenture; the Supplemental Indenture has been
duly authorized by each of the Issuers and when executed and
delivered by the Issuers (assuming the due authorization,
execution and delivery by the Trustee), will constitute a
valid and binding agreement of each Issuer, enforceable in
accordance with its terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vii) the Registration Statement has become effective
under the Act, no stop order suspending its effectiveness has
been issued and no proceedings for that purpose are, to the
knowledge of such counsel, pending before or contemplated by
the Commission;
(viii) the statements under the captions "Stock
Ownership and Certain Relationships and Transactions",
"Description of Revolving Credit Facilities", "Business --
Magcorp Environmental Matters", "Business -- Magcorp -- Legal
Proceedings; Pending Trade Issues", "Description of Senior
Notes" and "Underwriting" in the Prospectus, as amended or
supplemented, and Items 14 and 15 of Part II of the
Registration Statement insofar as such statements constitute a
summary of legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
(ix) none of the Issuers is in violation of its
respective charter or by-laws and, to the best of such
counsel's knowledge after due inquiry, none of the Issuers is
in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture
or instrument material to the conduct of the business of the
Company and its subsidiaries, taken as a whole, to which such
Issuer is a party or by which such Issuer or its respective
property is bound;
-21-
(x) the execution, delivery and performance of this
Agreement, the Indenture, the Supplemental Indenture and the
Securities and compliance by the Issuers with all the
provisions hereof and thereof and the consummation of the
transactions contemplated hereby, thereby and by the
Prospectus will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as
such may be required under the securities or Blue Sky laws of
the various states) and will not conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, the charter or by-laws of any of the Issuers or any
agreement, indenture or other instrument to which any of the
Issuers is a party or by which any of the Issuers or their
respective properties is bound, or violate or conflict with
any laws, administrative regulations or rulings or court
decrees applicable to any of the Issuers or their respective
properties;
(xi) after due inquiry, such counsel does not know
of any legal or governmental proceeding pending or threatened
to which any of the Issuers is a party or to which any of
their respective property is subject which is required to be
described in the Registration Statement or the Prospectus and
is not so described, or of any contract or other document
which is required to be described in the Registration
Statement or the Prospectus or is required to be filed as an
exhibit to the Registration Statement which is not described
or filed as required;
(xii) to the best of such counsel's knowledge, after
due inquiry, none of the Issuers has violated any
Environmental Laws, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act
or the rules and regulations promulgated thereunder, which in
each case might result in any material adverse change in the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a
whole;
(xiii) to the best of such counsel's knowledge, after
due inquiry, each Issuer has such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without
-22-
limitation, under any applicable Environmental Laws, as are
necessary to own, lease and operate its respective properties
and to conduct its business in the manner described in the
Prospectus; to the best of such counsel's knowledge, after due
inquiry, each Issuer has fulfilled and performed all of its
material obligations with respect to such permits and no event
has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of
any such permit, subject in each case to such qualification as
may be set forth in the Prospectus; and, except as described
in the Prospectus, such permits contain no restrictions that
are materially burdensome to any Issuer;
(xiv) none of the Issuers is an "investment company"
or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended;
(xv) to the best of such counsel's knowledge, after
due inquiry, no holder of any security of any of the Issuers
has any right to require registration of such security; and
(xvi) (1) the Registration Statement (including any
Registration Statement filed under 462(b) of the Act, if any)
and the Prospectus and any supplement or amendment thereto
(except for financial statements as to which no opinion need
be expressed) comply as to form in all material respects with
the Act, and (2) such counsel believes that (except for
financial statements, as aforesaid and except for that part of
the Registration Statement that constitutes the Form T-1) the
Registration Statement and the prospectus included therein at
the time the Registration Statement became effective did not
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
that the Prospectus, as amended or supplemented, if applicable
(except for financial statements, as aforesaid) does not
contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading.
-23-
In giving such opinion with respect to the matters covered by
clause (xvi), such counsel may state that their opinion and belief are based
upon their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
The opinion of Cadwalader, Wickersham & Taft described in
paragraph (e) above shall be rendered to you at the request of the Issuers and
shall so state therein.
(f) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Cahill Gordon & Reindel, counsel for the
Underwriter, as to the matters referred to in clauses (iv) (but only
the second clause thereof), (v) (but only the second clause thereof),
(vi) (but only the first clause thereof), (viii) (but only with respect
to the statements under the caption "Description of Senior Notes" and
"Underwriting") and (xvi) of the foregoing paragraph (e). In giving
such opinion with respect to the matters covered by clause (xvi) such
counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check
or verification except as specified.
(g) You shall have received letters at the time this Agreement
is executed and delivered and on and as of the Closing Date, in form
and substance satisfactory to you, from KPMG Peat Marwick LLP,
independent public accountants, with respect to the financial
statements and certain financial information contained in the
Registration Statement and the Prospectus.
(h) On or before the Closing Date, the Underwriter and counsel
for the Underwriter shall have received an opinion from Houlihan,
Lokey, Howard & Zukin, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter, with respect to the
solvency of the Company and MagCorp upon issuance of the Securities and
the consummation of the other transactions contemplated in this
Agreement, the Registration Statement and the Prospectus.
(i) The Offer shall have been consummated in accordance with
the terms of the Statement, [as amended by the First Supplement thereto
dated June , 1996] and the Depositary shall have received the Requisite
Consents.
-24-
(j) The Credit Facilities (as such term is defined in the
Registration Statement)shall have been duly authorized, executed and
delivered by each of the Subsidiary Guarantors.
(k) The Underwriter shall have received true and correct
copies of the Credit Facilities and there exists as of the date hereof
and on and as of the Closing Date (after giving effect to the
transactions contemplated by this Agreement and the application of the
proceeds received by the Company from the sale of the Notes) no
condition that would constitute a Default or an Event of Default (each
as defined in the Credit Facilities) under the Credit Facilities.
(l) No Issuer shall have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by any Issuer at or prior
to the Closing Date.
9. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the later of (i) execution of this Agreement and
(ii) when notification of the effectiveness of the Registration Statement has
been released by the Commission.
This Agreement may be terminated at any time prior to the
Closing Date by you by written notice to the Company if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or
development involving a prospective material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries or the earnings,
affairs, or business prospects of the Company or any of its subsidiaries taken
as a whole, whether or not arising in the ordinary course of business, which
would, in your judgment, make it impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and would,
in your judgment, make it impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus, (iii) the suspension or
material limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially
-25-
and adversely affect, the business or operations of the Company or any of its
subsidiaries, (v) the declaration of a banking moratorium by either federal or
New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in your opinion has a material adverse effect on the financial markets in
the United States.
10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (a) if to any Issuer, to Renco
Metals, Inc., c/o Magnesium Corporation of America, 238 North 2200 West, Salt
Lake City, Utah 84116, with a copy to Cadwalader, Wickersham & Taft, 100 Maiden
Lane, New York, New York 10038, Attention: Michael C. Ryan, Esq., and (b) if to
you, to you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park
Avenue, New York, New York 10172, Attention: Syndicate Department, with a copy
to Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005, Attention:
William M. Hartnett, Esq., or in any case to such other address as the person to
be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Issuers, their
respective officers and directors and of the Underwriter set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Securities, regardless of (i)
any investigation, or statement as to the results thereof, made by or on behalf
of the Underwriter or by or on behalf of the Issuers, their respective officers
or directors or any controlling person of any of the Issuers, (ii) acceptance of
the Securities and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Underwriter
because of any failure or refusal on the part of any Issuer to comply with the
terms or to fulfill any of the conditions of this Agreement, the Issuers jointly
and severally agree to reimburse the Underwriter for all out-of-pocket expenses
(including the fees and disbursements of counsel) reasonably incurred by it.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Issuers, the
Underwriter, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
-26-
any of the Securities from the Underwriter merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York without regard to principles of conflicts
of law.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
-27-
Please confirm that the foregoing correctly sets forth the
agreement between the Company, the Subsidiary Guarantors and the Underwriter.
Very truly yours,
RENCO METALS, INC.
By:________________________________
Name:
Title:
MAGNESIUM CORPORATION OF AMERICA
By:________________________________
Name:
Title:
SABEL INDUSTRIES, INC.
By:________________________________
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:__________________________
Name:
Title:
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 6/25/96 |
| | 5/24/96 | | 1 | | 2 | | | S-1 |
| List all Filings |
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